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Liability (ways to limit (unlimited, types of loss, certain events,…
Liability
H&B
limb 1
limb 2
statutory controls
non-excludable
D or PI
fraud
G:implied term - seller has
title
to sell
excludable liability for... ('reasonable')
loss or damage
(exc. L/D resulting from NE)
breach of
contract
G:
implied terms
(as to sample, description...)
G:breach of
right to transfer ownership
negligent misrep
innocent misrep
consumer contracts
obligations - not limit!
confidentiality, assignment restrictions, DP, regulatory, export control & sanctions, bribery & corruption, TUPE indemnities, IP indemnities, exclusivity, deliberate breaches...
incorporation
signature
reasonable notice
course of dealings
trade custom
non-severance rule
clause struck out if 'unreasonable'
construction (E/L liability for...)
Neg (Canada Steam Ship rule)
must expressly refer to 'negligence'
serious / deliberate
breach
OK but must: (1) inc. real remedies + (2) avoid if 'heart'
D.P/Non-P ('peas & beans')
express drafting needed for non-P, lateP, poorP
consequential, indirect / special loss
if excluding (common), expressly list all types of loss as direct loss!
H&B
obligations - don't exclude!
C to pay monies
S to perform services
excluding or restricting liability?UCTA
restrictive/onerous conditions
restricting rights/remedies
rules of evidence/procedure
duty defining clauses
business liability
ways to limit
unlimited
types of loss
certain events
financial capping
abandoning common law remedies
FM carve-outs
usual indemnities
PI, D, F, damage to property, breach of warranties/misrep, negligence, breach confidentiality
common law position
breach = pay damages
reinstate innocent party
provide loss reasonable contemplation
H&B remoteness
Limb 1 - 'foreseeable' losses flowing
Limb 2 - 'special loss' beyond the ordinary course of things
unreasonableness test (UCTA)
burden of proof
time of assessment
UCTA
bargaining position?
inducements to agree?
knew/out to have known [about term]?
exclusion where hard condition not met
customer special order?
resources to meet liability & insurance
other
justifying limitation amount
limitation waived in practice
left with any remedy
ways to exclude
complete
certain types
mutual indemnities