Limits on the Operation of Exclusion Clauses

Authors

  • Krish Maharaj

DOI:

https://doi.org/10.29173/alr111

Abstract

This article discusses exclusion clauses and instances when a court should intervene to limit the operation of such clauses. The author argues that exclusion clauses which are used improperly have the potential to damage the nature of contract by undermining the transfer or creation of rights under the contract. More specifically, the author discusses that exclusion clauses may eliminate obligations owed under the contract or absolve one party from liability completely. The author further argues that exclusion clauses allow for the unilateral alteration of the allocation of risk under a contract. In discussing these issues, the author makes reference to Canadian case law, particularly the Supreme Court of Canada’s views on appropriate limits on enforcement of exclusion clauses. In conclusion, the author considers the validity of public policy as a rationale to address the various problems created by exclusion causes.

Author Biography

Krish Maharaj

BCom/LLB (Auckland), LLM Candidate at UBC, Barrister and Solicitor of the High Court of New Zealand.

Downloads

Issue

Vol 49, No 3

Section

Articles

License

For Editions following and including Volume 61 No. 1, the following applies.

This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License

For Editions prior to Volume 61 No. 1, the following applies.

Author(s) retain original copyright in the substantive content of the titled work, subject to the following rights that are granted indefinitely:

  1. Author(s) grant the Alberta Law Review permission to produce, publish, disseminate, and distribute the titled work in electronic format to online database services, including, but not limited to: LexisNexis, QuickLaw, HeinOnline, and EBSCO;
  2. Author(s) grant the Alberta Law Review permission to post the titled work on the Alberta Law Review website and/or related websites.
  3. Author(s) agree that the titled work may be used for educational or instructional purposes and/or in educational or instructional materials. The author(s) acknowledge that the titled work is subject to other such "fair dealing" provisions and applicable legislation.
  4. Author(s) grant a limited license to those accessing the titled work from an electronic database or an Alberta Law Review website to download the titled work onto their computer and to print a copy for their own personal, non-commercial use, subject to proper attribution.

To use the journal's content elsewhere, permission must be obtained from the author(s) and the Alberta Law Review.