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Exception clauses: exclusionary or definitional? It depends!

Elizabeth Macdonald

Journal of Contract Law, Volume: 2012, Issue: 29, Pages: 47 - 73

Swansea University Author: Elizabeth Macdonald

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Abstract

The traditional approach to exception, or exemption, clauses is that they exclude liability which would otherwise arise. However, this has been questioned, most notably, fifty years ago, by Coote, on the basis that clauses which exclude liability are not a distinct type of clause, but merely part of...

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Published in: Journal of Contract Law
ISSN: 1030-7230
Published: 2012
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URI: https://cronfa.swan.ac.uk/Record/cronfa9215
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first_indexed 2013-07-23T12:01:52Z
last_indexed 2019-06-12T19:20:34Z
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fullrecord <?xml version="1.0"?><rfc1807><datestamp>2019-06-12T17:20:51.6530968</datestamp><bib-version>v2</bib-version><id>9215</id><entry>2012-03-07</entry><title>Exception clauses: exclusionary or definitional? It depends!</title><swanseaauthors><author><sid>a63a909e63c139a6816c06d3d6776339</sid><firstname>Elizabeth</firstname><surname>Macdonald</surname><name>Elizabeth Macdonald</name><active>true</active><ethesisStudent>false</ethesisStudent></author></swanseaauthors><date>2012-03-07</date><deptcode>FGHSS</deptcode><abstract>The traditional approach to exception, or exemption, clauses is that they exclude liability which would otherwise arise. However, this has been questioned, most notably, fifty years ago, by Coote, on the basis that clauses which exclude liability are not a distinct type of clause, but merely part of the definition of the obligation: the basic idea is that there is no right if there is no remedy. However, despite this powerfully persuasive logic, the courts have often continued to assume that such clauses have a distinct existence, and legislation, such as the Unfair Contract Terms Act 1977, presupposes that is the case. Some reconciliation of that logic with the persistence of the idea of the existence of exclusion clauses should be attempted. The argument that exclusion clauses are simply definitional is premised upon an internally consistent system, and it is contended that, fifty years on, it has become clear that that is not always the case. It is argued that exclusion clauses can be identified though recognising the compromises which are made by the operation of some rules, and contrasting the view of the rights which would be enforceable on the facts as they are, and which actually are enforceable on the facts the compromises treat as existing.</abstract><type>Journal Article</type><journal>Journal of Contract Law</journal><volume>2012</volume><journalNumber>29</journalNumber><paginationStart>47</paginationStart><paginationEnd>73</paginationEnd><publisher/><issnPrint>1030-7230</issnPrint><keywords/><publishedDay>31</publishedDay><publishedMonth>12</publishedMonth><publishedYear>2012</publishedYear><publishedDate>2012-12-31</publishedDate><doi/><url/><notes>accepted for publication 7th March 2012 on Journal of Contract Law</notes><college>COLLEGE NANME</college><department>Humanities and Social Sciences - Faculty</department><CollegeCode>COLLEGE CODE</CollegeCode><DepartmentCode>FGHSS</DepartmentCode><institution>Swansea University</institution><apcterm/><lastEdited>2019-06-12T17:20:51.6530968</lastEdited><Created>2012-03-07T18:12:05.1165886</Created><path><level id="1">Faculty of Humanities and Social Sciences</level><level id="2">Hilary Rodham Clinton School of Law</level></path><authors><author><firstname>Elizabeth</firstname><surname>Macdonald</surname><order>1</order></author></authors><documents/><OutputDurs/></rfc1807>
spelling 2019-06-12T17:20:51.6530968 v2 9215 2012-03-07 Exception clauses: exclusionary or definitional? It depends! a63a909e63c139a6816c06d3d6776339 Elizabeth Macdonald Elizabeth Macdonald true false 2012-03-07 FGHSS The traditional approach to exception, or exemption, clauses is that they exclude liability which would otherwise arise. However, this has been questioned, most notably, fifty years ago, by Coote, on the basis that clauses which exclude liability are not a distinct type of clause, but merely part of the definition of the obligation: the basic idea is that there is no right if there is no remedy. However, despite this powerfully persuasive logic, the courts have often continued to assume that such clauses have a distinct existence, and legislation, such as the Unfair Contract Terms Act 1977, presupposes that is the case. Some reconciliation of that logic with the persistence of the idea of the existence of exclusion clauses should be attempted. The argument that exclusion clauses are simply definitional is premised upon an internally consistent system, and it is contended that, fifty years on, it has become clear that that is not always the case. It is argued that exclusion clauses can be identified though recognising the compromises which are made by the operation of some rules, and contrasting the view of the rights which would be enforceable on the facts as they are, and which actually are enforceable on the facts the compromises treat as existing. Journal Article Journal of Contract Law 2012 29 47 73 1030-7230 31 12 2012 2012-12-31 accepted for publication 7th March 2012 on Journal of Contract Law COLLEGE NANME Humanities and Social Sciences - Faculty COLLEGE CODE FGHSS Swansea University 2019-06-12T17:20:51.6530968 2012-03-07T18:12:05.1165886 Faculty of Humanities and Social Sciences Hilary Rodham Clinton School of Law Elizabeth Macdonald 1
title Exception clauses: exclusionary or definitional? It depends!
spellingShingle Exception clauses: exclusionary or definitional? It depends!
Elizabeth Macdonald
title_short Exception clauses: exclusionary or definitional? It depends!
title_full Exception clauses: exclusionary or definitional? It depends!
title_fullStr Exception clauses: exclusionary or definitional? It depends!
title_full_unstemmed Exception clauses: exclusionary or definitional? It depends!
title_sort Exception clauses: exclusionary or definitional? It depends!
author_id_str_mv a63a909e63c139a6816c06d3d6776339
author_id_fullname_str_mv a63a909e63c139a6816c06d3d6776339_***_Elizabeth Macdonald
author Elizabeth Macdonald
author2 Elizabeth Macdonald
format Journal article
container_title Journal of Contract Law
container_volume 2012
container_issue 29
container_start_page 47
publishDate 2012
institution Swansea University
issn 1030-7230
college_str Faculty of Humanities and Social Sciences
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hierarchy_top_id facultyofhumanitiesandsocialsciences
hierarchy_top_title Faculty of Humanities and Social Sciences
hierarchy_parent_id facultyofhumanitiesandsocialsciences
hierarchy_parent_title Faculty of Humanities and Social Sciences
department_str Hilary Rodham Clinton School of Law{{{_:::_}}}Faculty of Humanities and Social Sciences{{{_:::_}}}Hilary Rodham Clinton School of Law
document_store_str 0
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description The traditional approach to exception, or exemption, clauses is that they exclude liability which would otherwise arise. However, this has been questioned, most notably, fifty years ago, by Coote, on the basis that clauses which exclude liability are not a distinct type of clause, but merely part of the definition of the obligation: the basic idea is that there is no right if there is no remedy. However, despite this powerfully persuasive logic, the courts have often continued to assume that such clauses have a distinct existence, and legislation, such as the Unfair Contract Terms Act 1977, presupposes that is the case. Some reconciliation of that logic with the persistence of the idea of the existence of exclusion clauses should be attempted. The argument that exclusion clauses are simply definitional is premised upon an internally consistent system, and it is contended that, fifty years on, it has become clear that that is not always the case. It is argued that exclusion clauses can be identified though recognising the compromises which are made by the operation of some rules, and contrasting the view of the rights which would be enforceable on the facts as they are, and which actually are enforceable on the facts the compromises treat as existing.
published_date 2012-12-31T03:11:07Z
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