Commentary

31.5 Drafting points on ‘reasonableness’

BOILERPLATE AND COMMERCIAL CLAUSES vol 4(3)

31.5 Drafting points on ‘reasonableness’

31.5 Drafting points on ‘reasonableness’

The question of reasonableness strongly affects the effectiveness of a limitation/exclusion of liability clause. Before including or drafting such a clause, the contract drafter should consider the following points which reflect the range of factors which would be considered by a court1:

  1. (a)

        the way in which the relevant conditions came into being and are used is generally relevant;

  2. (b)

        the five guidelines as to reasonableness set out in the Unfair Contract Terms Act 1977 Schedule 22;

  3. (c)

        the strength of the bargaining positions of the parties relative to each other, taking into account (among

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