Liability Clause Research Articles

Hacia una concepción autónoma de la responsabilidad precontractual y su aplicabilidad en el ordenamiento jurídico peruano

The present paper proposes critical reflections to the prevailing thesis of Peruvian doctrine that considers that pre-contractual liability is subsumed in the general clause of atypical extra-contractual liability. In addition, a Peruvian judgment is analyzed to demonstrate that it is possible to argue in future cases the existence of a pre-contractual obligation based on the category of “an obligation without benefit”, which emanates from objective good faith.

Corporate criminal liability towards the doer of illegal, unregulated and unreported fishing in indonesia

The seas in Indonesia are so wide and its natural wealth (fish) just can be explored and exploited by the ships which are owned by corporation. Those ships are potential to do illegal, unregulated and unreported (IUU) fishing. Even though corporation might commit a crime but the corporation can not be asked yet for the criminal liability. Nevertheless, criminal liability is charged to corporation’s staff. This research is included as normative research based on the study of law material. Stipulation of Article 101 Law Number 45 year 2009 jo Law Number 31 year 2004 on fishery, state that the claim and sanction in fishery criminal case which done by corporation will be given to corporation’s staff in form of fine penalty and added third of the given penalty. This is a reverse of criminal law because the other fields make corporation as the doer and can be asked for their responsibility. The theory development on criminal corporation liability seems does not followed by law maker. Consequently, there is no deterrent effect towards the doer of fishery criminal corporation cases. It needs law amendment and insert the corporation criminal liability clause, so there is a visible deterrent effect for the doer.

KLAUSULA EKSONERASI OLEH PELAKU USAHA DALAM PERJANJIAN JUAL BELI RUMAH

Abstract: The exenoration clause is an exclusion / liability clause in a housing sale and purchase agreement. The results of the study show that the legal agreement in Indonesia essentially assumes that wine has a binding power. This binding strength is based on the brochure that forms the bonds stipulated in the Consumer Protection Act which is based on the principle of good faith at the precontractual stage. When a contractual relationship arises between friendship and consumers on the basis of brochures received by consumers, the brochure is a supporting document in the substance of the agreement. Judging from the Agreement to Make an Agreement (Contract Freedom) the Exoneration Qualified Agreement does not meet the Subjective and Objective Requirements in accordance with Article 1320 BW, thus, the Exoneration Clause stated by the Business Entity in accordance with the request offered is not on demand.

Limitation of Liability Clause Helps Geotechnical Engineer Avoid $9.6 Million Verdict

A court case between a residential developer and a consulting engineering firm shows why limitation of liability clauses are critical to successful risk management.

Unknown Risks and Civil Liability in Spain: A Study of Spanish Law with Some French/Italian Comparative Remarks

Taking advantage of the French and Italian literature, this paper explores how the Spanish legal system deals with the problem of unknown risks. Questions relating to fault and strict liability, adequate causation and the defence of development risks are discussed. Amongst these questions, and to some extent to the author’s surprise, the attention of legal writers in these three legal systems is focused on the question of the role of the development risks defence within the general rules of non-contractual liability. The context for this discussion is the problem of how to understand the option between the European based regime of defective products and the said general rules of non-contractual liability. Underscoring that some traditional legal writers and case law have understood strict liability as liability based on a presumption of fault, this paper focuses on the particular approach of the Spanish legal system. The Spanish situation is special because (a) there is no provision in the Civil Code that could be seen as a general clause of strict liability for things or for risky activities and (b) because the commonly held understanding that every kind of strict liability regime is based on a presumption of fault may wrongly lead to the idea of applying the development risks defence to every kind of liability.

Origins of Strict Liability for Abnormally Dangerous Activities in the United States, Rylands v. Fletcher and a General Clause of Strict Liability in the UK

Origins of Strict Liability for Abnormally Dangerous Activities in the United States, Rylands v. Fletcher and a General Clause of Strict Liability in the UK

Benchmarking Inter-Hospital Alliances against Industry Best Practices

A semi-quantitative analysis of inter-hospital alliances in Germany, Canada and Switzerland was performed to: (a)Analyse the degree to which current inter-hospital alliances comply with best practices for inter-organisationalbusiness alliances; (b) identify management opportunities to improve the efficacy of hospital alliances.An alliance best practices management benchmark was compiled using literature searches and compared with actualhospital alliances. A series of interviews were conducted at 12 different inter-hospital alliances, monitoring theperceived and factual attributes relating to management processes, structure and governance.All alliances studied were perceived as successful. The healthcare contracts were short and pragmatic andmanagement tended to be informal. There was an absence of rigorous partner selection on the basis of due diligenceand no clear communicated, or monitored, alliance targets. The contracts often lacked conflict resolution,anti-solicitation and liability clauses. Clinical parameters specific to the alliance were not measured but animprovement of patient standard of care was perceived. There was a low awareness of financial parameters.Compatible IT systems / databases between the partners were lacking and institutionalised alliance capability is, inEurope, in the planning phase.Healthcare alliances have a high (perceived) success rate yet opportunities remain to improve the partner selectionassessment, setting and monitoring of alliance targets and centralising alliance capabilities. Transparent performancerewards and conflict resolution mechanisms need establishing upfront.

Limitation of Liability in Adhesion Contract: A Comparative Analysis between the French Theory of 'Failure of Essential Obligation' and the U.S. Theory of 'Failure of the Essential Purpose'

This paper aims to shed light on the French and U.S. doctrines of “failure of essential obligation” and “failure of essential purpose”, and discuss how Courts use them to resolve issues arising from limitation of remedies clauses. The research will compare scholars and courts positions in the United States to the standards adopted in France, where courts instead of referring to the failure of essential purpose and unconscionability doctrines, prefer to rely on the “failure of the essential obligation” in the contract. While in France consideration is only given to the “failure essential obligation” to determine whether the clause is derisory or inapplicable to the circumstance purposed to, the legislator in the United States has developed two ways to resolve these issues: “the failure of the essential purpose” and the “unconscionability”. This paper analyzes the economy of the doctrines retained respectively in France (II) and in the United States (III), by exploring their similarities and potential gaps, and providing for recommendation as to which of the doctrines is better suitable in resolving issues inherent to disclaimer and limitation of liability clauses.

Integrating contract management practices into the achievement of value for money in tanzania public procurement: Evidence from selected procuring entities in moshi municipality

Contract management is an important activity in public procurement especially on executing development projects while aiming at value for money. On the contrary, reports from the Public Procurement Regulatory Authority show that funds have been wasted due to poor contract management practices hindering value for money achievement. Hence, the study aimed at assessing the contribution contracts management practices towards value for money achievement. Questionnaires and Interviews were used for data collection and findings revealed that contracts contained all the necessary conditions, contracts practices of time management, quality management and costs control were effective and resulted into value for money achievement. Therefore, value for money was achieved above average scale by considering qualitative measures and it was recommended that more efforts are needed to enhance supervision and enforce defect liability clause.

Limiting Liability Clauses, Perceived Audit Quality, and Firm Value

We find a significant reduction in shareholders' approval of their auditors in the year after the first disclosure of the existence of liability limiting agreement (LLA) clauses in audit engagement letters of publicly traded firms. More importantly, we also observe a substantial reduction in the market value of US firms after the disclosure. The reduction in value is significantly larger for the Big 4 than for the non-Big 4 clients, which is consistent with the fact that the LLA practice was directly associated with three of the Big 4 audit firms and the fact that the Big 4 auditors have presumably more to lose from a loss of confidence in the audit process. The market loss is also more pronounced for the clients of the three Big 4 audit firms that were directly linked to the LLA practice. Overall, the empirical evidence suggests that US investors attribute a substantial premium to external audits and that investors’ negative perception of audit quality significantly increases a firm’s cost of capital and, consequently, adversely affects firm value.

The Reform of Contractual Liability in the New Hungarian Civil Code: Strict Liability and Foreseeability Clause as Legal Transplants

The Reform of Contractual Liability in the New Hungarian Civil Code: Strict Liability and Foreseeability Clause as Legal Transplants

Introducing a general clause of liability for dangerousness and its challenges

Introducing a general clause of liability for dangerousness and its challenges

Two Defining Features of Russian Tort Law: Their Rationale and Legal Effect

There are two aspects of Russian tort law that set it apart from that of other countries: the recognition of a general reversal of the burden of proof regarding fault in delictual obligations, and the existence of a general clause of strict liability. Such features are not only unique to Russian law but, also, constitute the very core of tort law in Russia today.Despite the significance of these two features, this is a gravely understudied area of research. One of the main reasons for this lies in the lack of interest in (and access to) Soviet legal literature and case law. However, without examining such sources, it is impossible to grasp the rationale behind such atypical legislation, which in turn, makes it difficult to understand Russian tort law in general. Therefore, it is necessary to explore the legislative history of Russia’s past era.Equally important is the legal effect that features may have in modern Russian tort law. This article will focus on the impact that a general reversal of the burden of proof has had on the outcome of tort cases in Russia. The author also will compare the general clause of strict liability in the Russian Civil Code with the regulation of sources of heightened danger in selected countries, a topic that deserves special attention, given Russia’s extensive experience in the field. In addition, all these questions will be examined against the backdrop of other contemporary jurisdictions and European harmonization initiatives in the area of tort law.

Seventh Circuit Court of Appeals Considers Design Professional’s Limitation of Liability Clause

Limitation of liability clauses can cap damages awarded in litigation, but the clauses are often subject to legal challenges.

A Study on Legal Issues of Korean Version Collision Liability Clause

A Study on Legal Issues of Korean Version Collision Liability Clause

NZ Law Commission--proposal for trust reform

The New Zealand Law Commission, after a long deliberation, has released its proposals for the reform of New Zealand's Trust law. This is not the last word, as submissions were invited to those proposals, and the Commission's final recommendations are expected in the next few weeks. The summary below represents the proposals of the Commission, not its final report or recommendations. 1. ‘Trust’ will become a defined term in the new legislation. The core concepts employed in the definition are the ‘enforcer principle’ of Morice v Bishop of Durham and the ‘three certainties’ outlined in Knight v Knight. 2. Trustee duties will be divided into three categories: The mandatory conduct duties will be: 3. There needs to be some clarity as to the Commission’s proposals concerning the permissible scope of limitation or exemption of trustee liability clauses in trusts. This...

Enforceability of Limitation of Liability Clauses in Engineering Contracts

AbstractThis paper demonstrates the importance of limitation of liability clauses for many engineering services agreements. Engineers, engineering firms, and clients often negotiate extensively over the specific terms of the limitation clause. However, little thought is given to whether or not the limitation would be upheld in a court of law despite the very real possibility that it would not be enforced should a dispute arise. It is concluded that following a list of guidelines will greatly increase the likelihood of enforcement of a limitation clause. This paper discusses the different types of limitation of liability clauses, the likelihood of their enforcement in a legal action, and the major factors that will affect whether the clauses are enforced on the basis of and lessons learned from several litigated/settled cases.

Comparative Tort Law and Economics: Strict Liability in Brazilian Legal Practice

Law and economics has been received skeptically outside of the United States. Attributing this phenomenon to the parochialism, Nuno Garoupa suggests that the change in such a framework requires the development of academic works that use comparative methodology and that perform the integration of law and economics to local legal doctrines. Tort law provides fertile ground for law and economics comparative studies. Contemporary phenomenon is the existence of a dualistic system of liability, performing the coexistence, in relative harmony, of the basic rule of negligence with the strict liability, applicable in cases specifically provided for. In legal practice, however, it is a complex issue, revealing the existence of a gray area that makes it difficult to establish a and consistent dividing line. Michael Faure consigns that among the few attempts to establish a clear cut test, highlight those performed by William Landes and Richard Posner that use economic analysis, specially the fundamentals crystallized in the Hand formula.The basic working hypothesis of this paper is that it is possible to apply fundamentals of economic analysis of law with a view to establish a borderline between negligence and strict liability in Brazil. The paper is structured in to two parts. The first part presents fundamentals of strict liability doctrine, exploring the traditional legal theory and economic analysis of law. The second part presents empirical evidence of the application of the fundamentals of economic analysis of law as criterion to apply strict liability in comparative law and in Brazil, giving emphasis to the innovative general clause of strict liability for the risk of the activity of the sole paragraph of article 927 of the Brazilian 2002 Civil Code. The conclusion performs a synthesis of the principal ideas developed.

Court Upholds Engineering Firm’s Limitation of Liability Clause

Limitation of liability clauses help ensure that damages remain in line with contractual fees.

A Basic Study on the Maritime Performing Party System and the Difference between the Maritime System and China's system

"United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea" was passed in July 3, 2008. on September 23, 2009 signing ceremony was held in Rotterdam. The system of maritime performing party is a special system in the transport convention, and constitutes an integral part of the Convention. Maritime performing party system is not the first system which brings in the carrier's independent contractor, but it is the most comprehensive and thorough one. It unified the duty of carrier's independent contractor in the maritime segment, and it is also an important progress in the developing process of international maritime legal system. There are some differences between the maritime performing party and China's current related system, i.e, the port maritime performing party and the intermediate performing party are included in the maritime performing party, and they can enjoy the carrier's exception clause and limitation of liability.