Introduction
There are legal limits on the extent to which civil
liability for breach of contract, or for negligence or other breach of duty,
can be avoided by your business. Nonetheless, Courts recognise the principle of
freedom of contract in private business and will uphold contractual terms
excluding or restricting liability when it is reasonable to do so.
Your business may face claims that it failed to take
reasonable care and exercise reasonable skill in the performance of a contract.
Allegations can arise many years after you performed the contract, making it
difficult to investigate and defend. It is not uncommon for the loss claimed to
substantially exceed the contract value. Your business clients should arrange
suitable insurance to protect against such losses, but your clients’ insurers
may still seek to recover their outlay from your business, so it is sensible to
take steps to manage and limit exposure to claims.
Excluding or restricting liability
It is permissible to exclude or restrict your liability for
loss or damage for negligence (you cannot exclude liability for death or
personal injury), provided your contract term satisfies the requirements of
reasonableness. You will need to
demonstrate your contract term excluding or restricting liability was part of
the contract agreed with your client (incorporated) and that it was a
reasonable term to include.
If you operate more than one company providing different
services to a client, then you need to make sure all of your companies are
covered and protected by your contract terms.
Some tips on incorporating your terms
• If you produce written quotes/proposals, identify the
application of your business terms and conditions in them
• Send a copy of your terms to the client. If the client is
expected to refer to your website or request a copy, make sure you provide all
they need to do so
• Consider whether the client can sign to accept your terms
• Look out for clients sending you or referring you to their
terms of business
• Ensure your terms are legible, sensibly set out with
suitable headings and sufficiently draw the client’s attention
• Identify the types of loss you exclude or restrict
• Identify the types of loss you accept, whether voluntarily
or by imposition of the law
• If applicable, set out any warranty or guarantee offered
to the client, including those provided by others such as a manufacturer’s
warranty for products
• Identify the expected insurance position of your client
and the loss you expect them to protect against
Assessing if your contract term excluding or restricting
liability is fair and reasonable
The Court will decide whether your contract term excluding
or restricting liability was a fair and reasonable term to include in the
contract, having regard to the circumstances which were, or ought reasonably to
have been known or in the contemplation of you and your client when the
contract was made. If the Court decides the term was unreasonable, you will
lose any benefit from the term. The Court will consider (amongst others);
• The strength of your bargaining position with the client,
taking account of alternative means the client’s requirements could be met such
as by other suppliers
• Whether you provided your client with an inducement to
accept the term
• Your client’s knowledge of the existence of the term and
its extent
• Availability of insurance cover and the expectation for
arranging insurance
• Value of the contract in comparison to the potential value
of losses claimed
• Value of any liability accepted by your business such as a
fixed sum and/or warranty
• Whether the term represents industry standards
• Option to contract on different terms but for a different
price
Ware aware of a recent example of how one of insured defeated a claim in excess of £6.6m by successfully excluding its liability by
operation of a condition excluding liability.
We include below example terms for illustration. Such terms
will form part of a wider contract and it is important you seek professional
guidance and advice when preparing your contracts.
Example terms for excluding or restricting liability,
insurance and warranty
1. Limitation of Liability
1.1. The Customer’s Attention is particularly drawn to this clause.
Nothing in these terms and conditions shall exclude or restrict the Company’s
liability for: a) death or personal injury caused by its negligence, or the
negligence of its employees, operatives or agents b) fraud or fraudulent
misrepresentation
1.2. Subject to condition 1.1: a) the Company excludes all
liability to the Client, whether in contract, tort (including negligence),
breach of statutory duty (where permissible), or otherwise, for any indirect or
consequential loss arising under or in connection with the contract; and b) The
Company’s total liability to the Client in respect of all other losses
including direct loss arising under or in connection with the contract, whether
in contract, tort (including negligence), breach of statutory duty (where
permissible), or otherwise, shall in no circumstances exceed the fixed sum of
£[enter fixed sum] or the contract value, whichever is the greatest sum.
2. Insurance
2.1. The
Client is best placed to protect its business and property against losses not
otherwise provided for by these terms and conditions by arranging suitable
insurance and the Client is understood to maintain such policies of insurance
with reputable insurers.
3. Warranty
3.1. Any
major items of plant supplied by the Company shall carry…
This document
cannot and does not contain legal advice. The legal information in provided for
general informational and educational purposes only and is not a substitute for
professional legal advice. Accordingly, before taking any actions based upon
such information, we encourage you to consult with the appropriate
professionals. We do not provide any kind of legal advice. Any use of or
reliance upon any information, contained within this document in whole or in
part, is undertaken solely at your own risk. We strongly advise that
professional legal advice is sought prior to any amendment to any of your
contract terms.