ABSTRACT
Despite the above comments, the main focus of legislative and judicial attention over the years has been on the control of exemption clauses. In many ways, this is unsurprising; clauses which take away, or seriously limit, one party’s rights can very clearly illustrate substantive unfairness and their widespread use in consumer transactions often buried in the small print of excessively detailed standard conditions9 can equally clearly demonstrate procedural unfairness. At its simplest, an exemption (or exclusion) clause is a clause which exempts one party from (or excludes) legal liability to which they would otherwise be subject under the contract, or generally at common law. Equally, the clause (then normally termed a limitation clause) can seek to limit the compensation payable for breach of contract, or to limit the remedies available (for example, by excluding the right to repudiate). At its most general, such a clause may seek to give one party a general discretion over the manner or the substance of their performance.10 Whatever the form adopted, and there appears to be no magic in the phrase exemption clause per se, the problem is the same, namely, is the degree of unfairness (procedural or substantive) sufficient to trigger either judicial or legislative intervention? Legislative intervention has a reasonably long pedigree (dating back to the Canals and Railways Act 1854) but, until relatively recently, such intervention was piecemeal, and the courts were left, largely without legislative assistance, to grapple with the problems thrown up by exemption clauses.
