Contractual limitation of liability and disclaimer clauses with particular emphasis on consumer contracts : a comparative study based on Maltese and European cases

Abstract

This thesis sets out to analyse the extent to which limitation of liability clauses and disclaimers are enforceable in the French, Italian, English and Maltese courts. It further seeks to determine each jurisdiction’s approach and compare it to the Maltese position, on which the research is lacking. With the increase in the number of contracts being entered into came an increase in the use of limitation of liability clauses in these contracts and disclaimers which limit the liability of one of the parties, usually that of the stronger party, in the event of a breach or inadequate performance of an obligation. The present market conditions also affected the types of agreements that are being entered into. An undeniable increase in the use of standard from contracts and electronic contracts was found. For this reason, this thesis looks into different forms of contract which can incorporate a limitation of liability clause or disclaimer between two or more persons to answer the question of the thesis, focusing primarily on consumer contracts. In order to make this comparison the thesis investigates the national laws and case law of France, Italy, England, Wales, and Malta. Furthermore, the extent to which such terms are enforceable, and which variables determine if a limitation of liability clause or disclaimer is enforceable in each legal system is established. The main aspects of each legal system discussed are the requirements for validity of limitation of liability clauses, the requirements for validity of a disclaimer, whether liability arising from implied legal terms can be limited, and whether tort law remedies can be limited. The author also examines how each country under analysis implemented the directives of the European Union which affect the limitation of liability clause and disclaimer, and how this has affected the way the courts decide such cases.