The law of contract : exemption of liability through the cases

Abstract

The English courts have amassed a wealth of precedent on the contentious issue of interpreting contractual exemptions of liability (“exemptions”) dating back to the turn of the nineteenth century. In this regard, one Lord Justice, in particular, was instrumental in revolutionising the approach followed by the courts in England in interpreting these reprehensible creations.

During his career, spanning more than half a century, Lord Denning openly displayed hostility towards exemptions (or “limitations” as he would sometimes refer to them). Nevertheless, he viewed limitation of liability not as a matter of justice, but as a rule of public policy, with its origin in history and its justification in convenience.*

This dissertation will, inter alia, focus on the views expressed in his judgements in cases that turned in the English courts during his career; the High Court, House of Lords, and later the Court of Appeal.

Lord Denning, in particular, in leading the Court of Appeal as Master of the Rolls from 1962, made full use of this authoritative and influential position to shape the common law concerning exemptions.

Considering the common law influence, the interpretation of exemptions by the English courts, in turn, found application in our courts from as early as 1903.

This dissertation will examine how the courts in England and South Africa have interpreted exemptions, focussing only on some leading (and interesting) cases decided over the past two centuries, and the rules of interpretation enunciated therein.

Further, concerning judicial precedent spanning more than two centuries, the courts in England, and later our courts, arguably excelled in consistently establishing a just and equitable outcome in interpreting exemptions, for the most part, without legislative interference.

Concerning the Constitution, the application of constitutional values in interpreting exemptions cannot be faulted and is welcomed, although the notion of fairness, as determined by considerations of public policy, frequently featured in the courts from the turn of the nineteenth century.

Conversely, concerning the CPA, and in particular, its application to exemptions in consumer contracts, it will be shown that legislative interference is unwarranted and somewhat flawed.

The problem will further be shown to, ostensibly, be the subjective and divergent views of the judges tasked with interpreting exemptions of liability in contracts. Regarding the expression of subjective views, however, it must be qualified in the sense that it is the exception rather than the rule, due in large to the cautionary nature of the doctrine of stare decisis.

The authorities concerning exemptions are infinite. Therefore, the cases discussed in this dissertation only relates to an average consumer’s daily interaction with exemptions of liability from the turn of the nineteenth century; the ticket cases, disclaimer notices and standard-form contracts.