Parties can also dodge these by limiting their liability—or even excluding it. They do this typically by inserting a disclaimer in their contractual conditions. In it, one contracting party states that it will not be liable for certain things for which it would usually be liable.
Well, from now on, the law has “redesigned” contractual relationships in practice. First and foremost, the new Book 5 “Obligations” in the New Civil Code provides for a broad statutory rule on disclaimers. On the one hand, the legislature confirms the current case-law, and on the other hand, it introduces several brand new restrictions that confine the parties’ leeway to limit their liability.
The following principles, which are already well known, are codified in the law
- You may disclaim liability for a “serious” error that you yourself or an auxiliary person has committed. This concerns “gross errors” that were committed without any element of intent. There are many examples of serious errors, but it is generally assumed that these are inexcusable errors that would not have been committed by a reasonable person in the same circumstances.
- You may not exclude liability for your own intentional error or the intentional error of the individuals who vouch for you. After all, your own error must not give rise to any advantage.
- Finally, the disclaimer must not undermine the contract. This is logical. In theory, disclaimers are valid, but if they are worded so broadly to the extent that it undermines the contract completely, the disclaimer loses its effect. For example, if you have to supply fresh food to a restaurant, you may not disclaim your liability for late delivery.
At the same time, the New Civil Code introduces the following novelties
- You may no longer disclaim liability for errors that harm the life or the physical integrity of a person. Therefore, you must not limit your liability to unintentional bodily harm.
- You may no longer disclaim liability for intentional errors committed by auxiliary persons whom you rely on for the performance of a contract.
- Auxiliary persons whom you rely on benefit from the protection under the main contract’s disclaimer. It is certainly difficult to accept that a contracting party passes on to third parties the effects of disclaimers that it has assigned to its co-contractor. The legislature therefore presumes that if a party limits its contractual liability, it does so not only for itself but also for others on whom it relies in the performance of the contract.
A prime example of this is the subcontractor that can, from now on, invoke the disclaimer that was agreed upon in the main contract between the main contractor and the main principal.
The general doctrine on disclaimers is expected to enter into force in the beginning of 2023. The New Civil Code contains a general rule on disclaimers that do not deviate from the rules in special legislations (such as legislation on consumer rights).
Check and see if the disclaimer in your general conditions and contracts is valid under the New Civil Code. We’re standing by to assist you whenever you need.
