Limitation Of Liability Clauses Research Articles

Оговорки об ответственности в гражданском праве

Civil liability is based on principles. They define the conditions and scope of liability. These are the rule of full compensation for damages, the principle of liability for fault, the presumption of guilt, etc. The possibility of exclusion or limitation of liability clauses and other conditions on the modification of liability are reviewed. The legal prohibitions and limits of contractual freedom to modify liability for breach of contract are analysed. Liability can be limited to an exceptional penalty or only one form of damages, such as actual damages. It is permissible to limit the damages, e.g. to a maximum amount of penalties, a percentage of the debt or a fixed amount; liability only if there is a certain form of fault, etc. Commercial parties may agree on liability for fault or limit it to a “force majeure” clause. It sets out the cases of breach of contract in which the debtor is not liable. There is no legal basis for the prohibition of absolute liability, including for force majeure. Liability for wilful breach of contract cannot be excluded. Liability cannot be excluded if it contradicts the essence of the statutory regulation, e.g. the liability of a professional security guard, carrier or freight forwarder. The liability of a debtor under a contract of adhesion or other contract where the creditor is a citizen-consumer cannot be preliminarily limited. Explored the possibility of a contractual change from the presumption of guilt to the presumption of innocence of the debtor. The dual procedural and substantive nature of the presumption of guilt was found. Procedural rules are rules of public law and cannot be the subject of agreement.

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.

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.

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.

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.

Court Upholds Engineering Firm’s Limitation of Liability Clause

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

Why your operator does not always love you: some observations on gross negligence, wilful misconduct and consequential loss

Due to the nature of the role of operator under a joint operating agreement (JOA), the operator is potentially exposed to a large magnitude of risk. As a result, JOAs typically include clauses intended to allocate and limit liability between the parties. A JOA may also include clauses that release the operator from liability and provide that the participants must indemnify the operator for liability that arises in performing its functions as operator. However, such clauses often contain carve-outs that attempt to make the operator liable if loss is caused where the operator’s conduct, or that of its senior personnel, constitutes gross negligence or wilful misconduct. Given the magnitude of loss that may potentially be incurred by participants under a JOA, it is vital that participants understand the impact of their JOA on their exposure to liability and, in particular, the current interpretations of the terms gross negligence and wilful misconduct likely to be applied by Australian courts. This paper considers the practical operation of such clauses and explores: the ability of a participant to claim consequential loss against the operator and what type of loss is likely to constitute consequential loss; and, practical avenues available to participants of a JOA to minimise the risk of liability by way of drafting, including the effect of a limitation of liability clause on the ability of a JOA participant to recover from the operator.

Compulsive Gambling Litigation: Casinos and the Duty of Care

CASINOS THROUGHOUT the world have been sued for negligence because they breached an alleged duty of care to patrons. One major duty of care issue is self-exclusion of gamblers. Australia, Canada, the U.S., and other countries have required or encouraged casinos and other gaming entities to develop procedures to allow gamblers to self-exclude themselves mostly because they believe they have a gambling problem. Self-excluded patrons who return to casinos and lose money have often sued casinos for breach of duty of care and other causes of action. Self-exclusion of gamblers was first instituted in Manitoba, but the concept became commonplace after Missouri established self-exclusion policies in 1996. The Missouri regulatory authorities had considered allowing self-excluded gamblers to sue a casino if it breached a duty of care by not preventing a self-excluded patron from entering a casino. They decided against such a policy because of the overwhelming testimony from gambling treatment professionals that permitting litigation would allow the self-excluded gambler to shift responsibility from himself to some other entity. The notion of self-exclusion and responsible gambling procedures are now relatively common and widespread and continue to grow with the introduction of new venues and forms of gambling. Most, if not all, Canadian jurisdictions have some form of responsible gambling measure in place, with other countries following suit. In the past decade, there has been litigation by self-excluded compulsive gamblers in common law jurisdictions such as Ontario, the U.S., Great Britain, and Australia as well as code jurisdictions such as Austria, France, Germany, and Korea. Generally the plaintiffs allege that the casino was negligent in breaching its duty of care to the self-excluded gambler and that the form, which generally releases a casino from liability through a limitation of liability clause, is unenforceable because it is against public policy. Some jurisdictions by statute will deny relief to a self-excluded gambler who manages to enter the casino and lose huge amounts of money. There have been numerous academic studies that discuss the purpose and effectiveness of a self-exclusion policy. Most have concluded that the burden of self-exclusion should be on the gambler alone and that any attempt to shift even part of the burden to the casino would be unproductive. This would be the opinion of Carol O’Hare, “SelfExclusion—Concept vs. Reality”;1 the National Council on Problem Gambling, Task Force on Self Exclusion (October 2003); Alex Blaszczynski, Robert Ladouceur, and Lia Nower, “Self-exclusion: A Proposed Gateway to Treatment Model”;2 and Jamie Cameron, “Problem Gamblers and the Duty of Care: A Response to Sasso and Kalajdzic.”3 Other authorities, especially lawyers, often disagree with the opinion of these problem gambling professionals and believe there should be liability if the casino is negligent in failing to self-exclude, e.g., William V. Sasso and Jasminka Kalajdzic, “Do On-

Limitation of Liability Clause Violates Anti-Indemnity Statute

Many large civil engineering projects find the project’s engineers earning fees that are a small fraction of the ultimate cost of the project, and similarly, a small fraction of the potential liability arising out of the engineering for the project. To mitigate this risk, some engineering contracts include a limitation of liability clause that limits an owner’s claims against the engineer to a maximum amount—for example, the fee or available insurance. To reap the benefits of such provisions, it is important that they be drafted in such way as to comply with the peculiarities of the law of the jurisdiction governing the contract. The engineering firm in Lanier at McEver, L.P. v. Planners and Engineers Collaborative, Inc. 2008 belatedly discovered that the terms of its particular limitation of liability clause ran afoul of Georgia’s anti-indemnity statute.

The Electricity Supply Industry: Shifting Risk by Outsourcing

Utilities as business enterprises seek to shift liability and risk by outsourcing work to contractors, and limiting liability in supply and distribution contracts. While these measures may be effective in most cases, they do not completely protect the utility. This article examines the situations where the utility will remain liable for injuries or damage caused by its contractors and where contractual limitation of liability clauses do not protect against liability.

The Effect of Filing a Limitation of Liability Clause with the Interstate Commerce Commission

The Effect of Filing a Limitation of Liability Clause with the Interstate Commerce Commission