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