Terms of exclusion or limitation of contractual liability under English civil law

Abstract

English contract law pays great attention to the terms of exclusion or limitation of contractual liability that the parties may provide in a contract. This is due to the fact that these terms can be considered as a social problem, since they are a means by which the contracting parties seek to avoid liability for non-fulfillment of contractual obligations. In this sense, these terms constitute an easy way for the contracting party, which is stronger, to exclude itself from liability to the other party. This is especially true in consumer related contracts. The purpose of this paper is to address how these terms are regulated by doctrine and jurisprudence in England. This paper consists of two main cases. In the first case, the content and features of the terms of exclusion or limitation of contractual liability will be analyzed according to common law or judicial practice in England. It is understood that in this case, at the center of attention will be the analysis of the decisions of courts of different levels or the analysis of judicial precedents, since it is the latter that gives the meaning and content of these terms. In the second case, the terms of exclusion or limitation of contractual liability will be analyzed in general, according to the English law: “The Unfair Contract Terms Act 1977”. Here we will specifically analyze the reasons that drove the legislators in England to pass this law, as well as address some of the main provisions of this law, as well as the impact they have had on judicial practice. Also, special attention will be paid to the cases of English judicial practice in relation to the correct and exact meaning of the concrete provisions of this law.