“TERMS AND CONDITIONS APPLYâ€: THE WORLD OF EXCLUSION CLAUSES IN CONTRACTS

Abstract

Exclusion or exculpatory clauses are inserted into contracts to limit liability of the party relying on such clauses from otherwise obligations he owes the other party to the contract. This though acceptable in the world of contracts, has consistently come under judicial harmmer to the extent’s that courts do not allow parties to wriggle out of clear cut intentions of the parties to the contract hence courts do not allow parties to exclude fundamental terms of the contract. Exclusion clauses come in different words; conditions, warranties, innonimate terms etc. The courts have interpreted them differently because different consequences flow from each but in all, the courts are guided by the principle of effecting the expressed intention of the parties and to give business efficacy to the contracts, because contractual terms are binding on the parties and even the courts. The newest specie of exculpatory clause is “Terms and Condition Applyâ€. In written contracts, the parties agree to these terms and conditions before execution but in Parol contracts, this clause is not agreed upon as should be the case in a real contract where parties negotiate the terms and condition before hand. These terms and conditions are foisted upon the other party, (most times the general public that deal with the first party, which is usually a company), without any negotiation. The consequence is that any member of the public who deals with the company would have knowledge of the terms and condition, subsequently. This in our opinion is unfair as it makes the public enter into a contract, which terms and conditions they don’t know before hand. The public would therefore contract at their own peril as such terms and condition may exculpate the company from its liability unknown to the public.