Limitation clauses : a historical and comparative analysis under both national and foreign laws

Abstract

This article seeks to analyse grounds of validity of limitation clauses under both Maltese law and foreign law. Lack of uniformity in both local and foreign law highlights the importance of court judgments on the matter. An outline of the historical and philosophical development of European contract law is given in the first section in order to determine when and for what reasons limitation clauses began to be inserted in contracts on a regular basis. The second section focuses on case law and pieces of legislation of the respective States, together with works of various jurists and legal authors on the matter. Moreover, EU law is examined, since its scope of harmonization of the laws of its Member States creates the possibility of bridging any differences in existence between said Member States in relation to limitation clauses. The third section deals with Maltese court practice and pieces of legislation emphasises the grounds of validity found under Maltese law and which legal system, if any, is the major influence vis-a-vis limitation clauses. This study comes to the conclusion that, in some cases, Maltese law follows other legal systems mentioned in the legal analysis and that, in some other cases, it takes the lead in providing grounds to determine the validity of limitation clauses. It highlights the importance of uniformity and regulations to create congruency in judgements. This study is adapted from a Research Project, entitled 'Limitation Clauses Reducing and Excluding Liability', submitted by the author in April 2016.