B2B Contracts - The Liability Provisions: Modern Law and Practice
B2B Contracts - The Liability Provisions: Modern Law and Practice
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B2B Liability Provisions: Modern Law and Practice
When things go wrong, liability provisions matter. This course will help delegates understand how to draft and assess clauses that are clear, commercially meaningful and capable of being relied on.
Limitations and exclusions of liability are among the most heavily negotiated provisions in commercial contracts.
They are also among the most important. When a dispute arises, these clauses may determine whether a party can recover substantial losses, whether liability is capped, whether certain categories of loss are excluded altogether, and whether the contractual risk allocation actually works.Yet liability provisions are often treated as a technical legal battleground. Clients may focus on the commercial deal while lawyers negotiate caps, carve-outs, indemnities, exclusions, “consequential loss”, reasonableness, fraud, wilful default, deliberate breach and other familiar but often difficult concepts.
This course will examine the modern law and practice of B2B liability provisions. It will consider how the courts approach limitation and exclusion clauses, how recent cases have affected drafting and interpretation, and how lawyers can engage clients more effectively in decisions about risk allocation.
The modern judicial approach is not simply technical. Recent cases increasingly recognise that liability provisions form part of the overall commercial bargain between the parties. That makes careful drafting, clear instructions and proper commercial explanation even more important.
The course will look at the practical issues that arise when drafting and negotiating liability clauses, including:
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
What 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
"Traditional" exclusions
Just what is indirect loss? Is it different from consequential loss?
Why should I exclude loss of profits? Or maybe not …
Throughout, this session will emphasise the drafting points to be derived from the modern law.
The course is aimed at commercial lawyers, in-house lawyers and litigators who advise on, draft, negotiate or litigate B2B contracts.
Please note: this course considers B2B contracts only. It does not cover consumer law.
Who Should Attend?
- Commercial lawyers and in-house counsel
- Contracts managers and legal officers
- Anyone who drafts, negotiates, or reviews commercial agreements
Learning Outcomes
By the end of this course, delegates should be able to:
- understand the current approach of the courts to limitation and exclusion clauses in B2B contracts;
- identify the key issues that arise when drafting caps on liability, exclusions and carve-outs;
- distinguish between limitation clauses, exclusion clauses, indemnities, warranties and other risk-allocation tools;
- assess the practical effect of commonly used phrases such as “consequential loss”, “indirect loss”, “wilful default” and “deliberate breach”;
- recognise the role of UCTA and reasonableness in business-to-business contracting;
- avoid common drafting errors that can make liability provisions unclear, ineffective or commercially unsafe;
- explain liability provisions to clients as part of the wider commercial allocation of risk;
- apply recent case law when drafting, negotiating or litigating liability clauses;
- draft more robust and commercially meaningful liability provisions;
- advise clients on when a liability clause is likely to work — and when it may not.