HUNTER ENGINEERING: THE JUDICIAL REGULATION OF EXCULPATORY CLAUSES
AbstractExculpatory clauses are regulated in a number of ways by the law of contract. Lord Denning's substantive doctrine of fundamental breach, however, is not one of them. The judges of the Supreme Court of Canada recently confirmed this. They differed, however, as to what other test such clauses must satisfy. Two judges preferred an unconscionability test, two preferred a reasonableness test triggered by a fundamental breach and one judge declined to address the issue. There are difficulties with both of the suggested approaches, especially the view that unconscionability is a suitable control. The major difficulty is that the nature of the unconscionability standard is unclear. The Supreme Court has avoided indicating what that notion might involve.
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