Exemption Clauses in Contracts: Historical and Comparative Law Analysis

Abstract

"In general, exemption clauses are stipulations according to which one or both parties to a contract will not be liable in the case of breach1 of one or more of its (their) obligations. These clauses are also known as exculpatory, exoneration, limitation, or exclusion clauses. In the present paper I will use these words interchangeably. Exemption clauses aim to modify the rules of liability otherwise applicable in the case of breach, placing the obligor in a better position. The doctrine of freedom of contract (and the related doctrine of autonomy of will) is considered to be a fundamental principle of the law of contracts.2 Autonomy of will is, in addition, a justification of the presence of exemption clauses in contracts. But also in this field of the law of contracts a considerable movement towards the limitation of contractual freedom can be seen."(...)