Commentary

31.4 Drafting and negotiating issues

BOILERPLATE AND COMMERCIAL CLAUSES vol 4(3)
| Commentary

31.4 Drafting and negotiating issues

| Commentary

31.4 Drafting and negotiating issues

The following comments assume that the contract drafter’s objective is to limit or exclude liability to the maximum extent possible:

  1. (a)

        Draft explicitly and precisely. Exemption clauses are not the place to engage in ‘constructive ambiguity’ (see discussion above). It is very important that the language be made clear and unambiguous. Liability clauses deal with technical legal subjects and some legal language (for example, references to negligence and breach of statutory duty) may be inevitable. If it is intended to exempt liability for what were once called ‘fundamental’ breaches of contract, this should be stated as explicitly as possible.

  2. (b)

        Mention liability for negligence. For example, include in the exemption clause words such as ‘The liability of A under or in connection

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