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b2b terms rundown 3 No exclusion of liability for gross negligence

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08/12/2020
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Are presumed unfair under the new b2b law clauses that exclude liability for wilful misconduct or gross negligence (faute grave / zware fout).

At first sight the new b2b law goes further than current case law (and the draft New Civil Code), that only prohibits the exclusion of liability for wilful misconduct, not for gross negligence.

In practice no real change however. Irrespective of the b2b law, a clause excluding liability for gross negligence will most probably be considered as null or ineffective, because of the prohibition to deprive the contract of its essence, or based on abuse of rights.

In any case actual annulments of such clauses will be rare, simply because, for obvious commercial reasons, it is not frequent that a contract party declares it  may commit gross negligence with impunity.

When an exemption of liability is drafted in general terms (without specifying the degree of fault it applies to) courts do not even need to annul: they often apply a restrictive interpretation, assuming the parties did not mean to include gross negligence in the exemption clause.

These short #b2btermsrundown posts randomly identify topics of the new b2b law.

Don't hesitate to contact Olivier Vanden Berghe should you have any questions.