Are clauses exempting or excluding liability of a party to a contract of sale effective?
Yes, in general clauses exempting or excluding liability of a party to a contract of sale are effective. In order to be effective these clauses must be expressed in clear and unambiguous terms. It is common practice to exclude liability for indirect or consequential loss or damages (including loss of profit) and in certain instances a monetary cap is placed on potential liability. All such clauses must be carefully drafted and appropriate legal advice should be sought in order to ensure that the limitation of liability clauses are enforceable. “Voetstoots” clauses are often incorporated into sale agreements. In terms of such a clause the purchaser takes the risk of the presence of defects in the goods. The onus of proving the existence of such a term is not yet settled but the general view is that the party alleging the existence of the relevant term (normally the seller) bears the onus.
Related Questions
- Do they use a sales contract to spell out the terms of the sale and allow each party to define their expectations of the transaction?
- Can EPA help the states develop a standard and effective liability disclaimer for third party registrants?
- Must a Contract of Sale mention the fact that a party desires to initiate a Sec. 1031 exchange?
