Exculpatory Clauses

• Author: John D. McCamus
• Pages: 863-907

863

CHA PTER 2 0

EXCULPATORY CL AUSES

A. INTRODUC TION

The use of exculpatory clauses in w ritten agreements is a per vasive

practice in both commercial and cons umer transactions. Exculpator y

clauses are used to l imit the potential liability of a party for breach of

contract. Such clauses may completely preclude liability for breaches

of certain stipulated kinds. Others may concede liability but impose a

limitation on the extent of liabil ity, such as return of the purcha se price

or a numerical cap on the extent of liability assumed. Other clause s

may impose strictures on the manner in which losse s resulting from

breach are to be claimed by imposing, for example, a short period of

notice within which cla ims are to be advanced. Exculpatory clauses are

referred to by a variety of label s, such as disclaimers, limitation of lia-

bility clauses and exclusion, exceptions, or exemption clauses. When

such clauses are used del iberately by the parties to consc iously allo-

cate the risk of certa in kinds of losses to one party or the other, they

perform a valuable function. On the other hand, where they have been

inserted by one part y in a written agreement th at, for whatever reason,

is unlikely to be read by t he other party, the use of such provisions may

surprise t hat party and lead to what may be considered to be harsh

and unjust consequences. Such problems are most likely to ari se, of

course, in the context of trans actions involving the supply of goods

and services to consumers on the basis of standa rd forms drafted by

the supplier. Understandably, then, the courts have attempted to devise

THE LAW OF CONTR ACTS864

various techniques for effecting some degree of judicial control over

the use of exculpatory clause s.

In this chapter, we examine t he development of the doctrine of

fundamental breach t hat has been the principa l, but not the exclu-

sive means for achieving this objective. Although controversy as to

the doctrine’s precise nature h as persisted for several decades, it is

widely accepted that the doctrine is, in part at least, an aspect of the

law of contract interpretation. As we shall see, this doctrine emerged

in English law but has now essentially vanished from the English legal

landscape. It also h as had an unsettled career in Canadian l aw. In its

leading 2010 decision in Tercon Contractors Ltd v British Columbia (Min-

istry of Transportation),1 however, the Supreme Court of Canada pre-

served a unique Canad ian version of the doctrine, thereby bri nging

long-awaited stability to this i mportant aspect of contract law. On the

same occasion, though, the Court pronounced that it was t ime to “shut

the coff‌in on the jargon associated w ith ‘fundamental breach’”2 and “lay

this doctri ne to rest.”3 The Court did not, however, articulate a label

for the new Canadian version of the doctr ine. We will return to this

terminological point at the conclusion of this chapter. For reasons of

convenience, however, we will continue to refer to the doctrine by its

traditional label i n this account of the emergence and current status of

the doctrine in Engli sh and Canadian law.

The basic idea underlying the doctr ine of fundamental breach is

that there may be breaches of contract that are so severe that exclu-

sion clauses, however drafted, should be either narrowly interpreted

or otherwise conf‌i ned by the courts in such a way as to withhold the

protection of the particular cl ause in such circu mstances. The doctrine

of fundamental breach emerged in t he middle of the last century from

a series of decisions by the English Court of Appeal in which Lord Den-

ning played a prominent role. Over the next few decades, an extended

debate between the Court of Appeal and the House of Lord s concern-

ing the nature of and proper role of the doctrine un folded. The view

advanced by Lord Denning and the Court of Appeal was that the doc-

trine held that in ci rcumstances of a fundamental breach of contract,

an exculpatory clause would not be perm itted to protect the party in

breach from liability on the ba sis of a “rule of law” to this effect. The

view advanced by the House of Lords was t hat the proper approach

to the judicial control of exculpatory clause s is merely one of narrow

1 Tercon Contractors Ltd v British Columbia (Transportat ion and Highways), 2010

SCC 4 [Terc on].

2 Ibid at para 82, Cromwell J.

3 Ibid at para 62, Binn ie J.

Exculpator y Clauses 865

construction of the clause s against the interests of those relying upon

them. Unsurpri singly, the views of the House of Lords were to prevail.

The course of the debate, however, reveals a number of the diff‌iculties

involved in fashioning a doctrine of th is kind. Accordingly, the leading

English cases w ill be reviewed here before turning to an account of the

Canadian reception of the doctrine. As a preliminary matter, however,

it is useful to identif y and distinguish certain doct rines with which the

doctrine of fundament al breach may be confused.

B. R ELATED DOCTR INES

The doctrine of fundamental breach is not the only device devised by

the courts to affect control over the effects of exculpatory clauses. As

we have seen,4 the rules relating to the incorporation of written terms

in agreements have developed in such a way as to reject incorporation

of unfair exculpatory cl auses in circumstances where the af fected party

has not had adequate notice of the inclusion of the clause i n the written

document. The requirement of special notice of unduly harsh exculpa-

tory clauses has been applied in the context of both signed agreements

and unsigned documents form ing the basis of a contractual relation-

ship. It is often the case that the pa rty not in breach will want to rely

both on the rules relating to incorporation and on the doctrine of fun-

damental breach. The effect of the two doctr ines is, however, quite dis-

tinct. If the rules of incorporation apply to prevent inclusion of the

term in the agreement, t he provision should, in theory at lea st, be of no

force and effect whatsoever. The doctrine of fundamental bre ach comes

into play, however, only if the exculpatory clau se is included within the

agreement and thus appears to be potentially capable of shielding the

party in breach from liability. If the doctrine applies, it holds that an

otherwise enforceable clause does not protect the party in breach from

liability for a fundamental breach of contract.

Two further devices that may have the effect of controlling reliance

on exculpatory clauses ar ise in the context of the parol evidence rule.5

That rule precludes reliance on prior representations or undertakings

to supplement, vary, or contradict the terms of a written agreement

that is intended to be the full expression of the agreement between the

parties. There are a number of exceptions to th is rule, two of which

4 See Chapter 6, Sect ion C. Compare Delaney v Cascade River Holidays Ltd (1 983),

44 BCLR 24 (CA).

5 See Chapter 6(D).