ABSTRACT
This chapter considers applicability to contractual estoppel of common law and statutory controls over exclusion of liability by contract. It focuses on the argument, raised in the context of cases where contractual estoppel was relied on to answer actions in misrepresentation or breach of duty of care, that contractual terms which raise the estoppel should be treated in the same way as exclusion clauses. Modern approach of the common law to exclusion clauses now rests on recognition of the parties’ entitlement to allocate between themselves as they choose the risk of things going wrong in their relationship. In the context of statutory control over exclusion of liability for misrepresentation, the chapter examines the long-standing distinction between “exclusion” and “basis” characterisation of contractual provisions, and extensively discusses the Court of Appeal decision in First Tower Trustees Ltd v CDS (Superstores International) Ltd that purports to eliminate the distinction in favour of the restrictive “exclusion” approach.
