B2B Contracts - Liability Provisions - Modern Law & Practice

Introduction

This is the one most lawyers both love and fear in equal measure: during the drafting stage or in negotiations, most clients will go quiet while the lawyers battle it out over limitations and exclusions of liability. It seems to be the special preserve of lawyers, who use their own special jargon. But what does it all mean? In a sense, the whole of an agreement relates to the allocation of risk and potential liability, so why should lawyers monopolise just one clause dealing with caps and exclusions?

In fact, the law is moving away from technicality and more recent cases emphasise the role that limits and exclusions of liability have as part of an overall deal. So drafting liability provisions should be something lawyers engage with their clients on.

However, the risks remain - the law moves at a dizzying pace, and those of us who watch the law reports look out for the subtle changes in approach adopted by the courts when it comes to interpreting and applying liability provisions.

After all, when it goes horribly wrong, you need liability clauses you can rely on. Throughout this session, we will emphasise the drafting points to be derived from the modern law.

(NB: this course looks at B2B contracts only, it does not consider consumer law)

What You Will Learn

This live and interactive course will cover the following:

• The need for liability provisions
• What happens without them?
• How should a lawyer approach the drafting process? What factors need to be considered?
• How else can risk be mitigated?
• Approaching the problem
• Which liabilities do you exclude? Which liabilities do you cap? Are there any you should accept?
• Can’t you just exclude all liability?
• Are there some liabilities you can’t exclude?
• The interpretation of liability provisions
• The ‘classical’ approach
• The modern (and current) approach - and how different it is from just a few years ago
• The death (or at least life-support) of contra proferentem
• Other ways to exclude liability - time limits and notices
• “Traditional” exclusions
• Just what is indirect loss? Is it different from consequential loss?
• Why should I exclude loss of profits? Or maybe not …
• What law is applicable?
• The role of the Unfair Contract Terms Act 1977
• What are ‘written standard terms of business’
• How do the courts now approach UCTA - is it a big risk when drafting standard form contracts?
• What is reasonableness under UCTA and how do the courts approach the typical commercial case?

Recording of live sessions: Soon after the Learn Live session has taken place you will be able to go back and access the recording - should you wish to revisit the material discussed.