An exclusion clause is a term in a contract that seeks to restrict the rights of the parties to the contract.

Traditionally, the district courts have sought to limit the operation of exclusion clauses. In addition to numerous common law rules limiting their operation, in England and Wales Consumer Contracts Regulations 1999. The Unfair Contract Terms Act 1977 applies to all contracts, but the Unfair Terms in Consumer Contracts Regulations 1999, unlike the common law rules, do differentiate between contracts between businesses and contracts between business and consumer, so the law seems to explicitly recognize the greater possibility of exploitation of the consumer by businesses.

Types of exclusion clause

There are various methods by which a party may seek to exclude or mitigate liability by use of a contractual term:

Term must be incorporated

The courts have traditionally held that exclusion clauses only operate if they are actually part of the contract. There seem to be three methods of incorporation:

Judicial control of exclusion clauses

Strict literal interpretation

For an exclusion clause to operate, it must cover the breach (assuming there actually is a breach of contract). If there is, then the type of liability arising is also important. Generally, there are two varieties of liability: strict liability (liability arising due to a state of affairs without the party at breach necessarily being at fault) and liability for negligence (liability arising due to fault).

The courts have a tendency of requiring the party relying on the clause to have drafted it properly so that it exempts them from the liability arising, and if any ambiguity is present, the courts usually interpret it strictly against the party relying on the clause.

As espoused in Darlington Futures Ltd v Delco Australia Pty Ltd,[6] the meaning of an exclusion clause is construed in its ordinary and natural meaning in the context. Although we construe the meaning much like any other ordinary clause in the contract, we need to examine the clause in light of the contract as a whole. Exclusion clauses should not be subject to a strained construction in order to reduce the ambit of their operation.[7] The judge in R&B Customs Brokers Co Ltd v United Dominions Trust Ltd[8] refused to allow an exemption clause, of which did cover the nature of the implied term, on the grounds that it did not make specific and explicit reference to that term.[9]

Contra proferentem

If, after attempting to construe an exclusion clause (or indeed any other contractual term) in accord with its ordinary and natural meaning of the words, there is still ambiguity then (if the clause was imposed by one party upon the other without negotiation) the contra proferentem rule applies. Essentially this means that the clause will be construed against the interests of the person who proposed its inclusion. that is to say, contra (against) the proferens (proposer).[10]

In terms of negligence, the courts have taken the approach that it is unlikely that someone would enter into a contract that allows the other party to evade fault based liability. As a result, if a party wishes exempt his liability for negligence, he must make sure that the other parties understand that. The decision in Canada SS Lines Ltd v. The King[11] held that:

Contra proferentem in Australian contract law

In Australia, the four corners rule has been adopted in preference to the idea of a "fundamental breach".[12] The court will presume that parties to a contract will not exclude liability for losses arising from acts not authorised under the contract. However, if acts of negligence occur during authorised acts, then the exclusion clauses will still apply.[13][14]

If the contract is for the carriage of goods, if the path is deviated from what was agreed, any exclusion clauses no longer apply.[14]

In Australia, exclusion clauses have been recognised as valid by the High Court. They do not apply in cases of deliberate breach.

Statutory control

Even if terms included in a contract are deemed to be exclusion or exemption clauses, various jurisdictions have enacted statutory controls, to limit their effect. In Australia, ACL, Section 64 limits exclusion clauses from rendering them from being ineffective against the guarantees of the same act. In the United Kingdom, the Unfair Contract Terms Act 1977 renders many exemption clauses ineffective. The Unfair Terms in Consumer Contracts Regulations 1999 provide further protection for consumers.


  1. ^ [1934] 2 KB 394
  2. ^ (1877) 4 CPD 416
  3. ^ [1971] 2 WLR 585
  4. ^ [1949] 1 All ER 127
  5. ^ [1964] 1 WLR 125
  6. ^ (1986) 161 CLR 500
  7. ^ [1986] HCA 82
  8. ^ [1988] 1 All ER 847
  9. ^ The term in question was the implied term as to fitness-to-purpose pursuant to the Sale of Goods Act 1979 s14(3).
  10. ^ Darlington Futures Ltd v Delco Australia Pty Ltd [1986] HCA 82, (1986) 161 CLR 500 (16 December 1986), High Court (Australia).
  11. ^ [1952] AC 192
  12. ^ Sydney City Council v West (Ticket case) [1965] HCA 68, (1965) 114 CLR 481 (16 December 1965), High Court (Australia).
  13. ^ Davis v Pearce Parking Station Pty Ltd [1954] HCA 44: Clear words are necessary to exclude liability for negligence.
  14. ^ a b Thomas National Transport (Melbourne) Pty Ltd v May & Baker (Australia) Pty Ltd [1966] HCA 46, (1966) 115 CLR 353 (10 August 1966), High Court (Australia).

16. See also, Darlington Futures v Delco Aus [1986] HCA 82 [1]