Exclusion and limitation of liability—business-to-consumer
Exclusion and limitation of liability—business-to-consumer

The following Commercial practice note provides comprehensive and up to date legal information covering:

  • Exclusion and limitation of liability—business-to-consumer
  • Brexit
  • EU case law before and after Brexit
  • Quick view
  • What is an exemption clause?
  • The key issues
  • Incorporation
  • Protection afforded by incorporation
  • Incorporation v fairness
  • Onerous terms and the fairness test
  • More...

This Practice Note considers exclusion and limitation of liability in business-to-consumer (B2C) contracts and notices. It considers the Consumer Rights Act 2015 (CRA 2015) and the Competition and Markets Authority (CMA) guidance on unfair terms in the context of exclusion and limitation of liability. It also provides guidance for drafting exclusion and limitation of liability clauses (also known as limitation of liability clauses, limitation clauses, exclusion of liability clauses, disclaimers, exclusion clauses and exemption clauses).

In this Practice Note, exclusion and limitation of liability provisions in B2C contracts or notices are collectively referred to as ‘exemption clauses’.

A B2C contract term or notice which excludes or limits liability is subject to statutory and common law controls. The room for manoeuvre when drafting B2C contracts and notices and implementing them is considerably limited. This is primarily because they are subject to the rules set out in the CRA 2015.

This Practice Note should be read in conjunction with Practice Note: Consumer Rights Act 2015—unfair terms, which looks in detail at the fairness and transparency tests and how they are applied by the courts.

Note that limitation of liability is referred to as ‘restriction’ of liability in the CRA 2015.

Drafting exemption clauses

For a table of issues to consider when drafting or reviewing an exemption clause in a B2C contract or notice, see: Drafting tips for B2C exemption clauses below.

Drafting boilerplate

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