Home > Publications > b2b terms rundown 6 – What about exclusion of liability for indirect loss?
Print pageprint Stay Informedprint

Publications

b2b terms rundown 6 – What about exclusion of liability for indirect loss?

autor
Author(s) of this Publication

Contracts frequently exclude all liability for indirect damage, whether or not mutually. There is no legal definition for indirect damage and clauses often define it quite broadly, sometimes even assimilating indirect and immaterial damage.

Under the b2b law limitation of liability clauses can be considered unfair if they “inappropriately exclude or limit the legal rights of a party in the event of total or partial non-performance or defective performance by the other party of one of its contractual obligations”, which basically coincides with the previous test under case law: limitation of liability clauses may not deprive a party’s obligation of its substance.

Courts are generally rather tolerant towards clauses excluding indirect damage and this should not fundamentally change. The test should however be done on a case by case basis. In some types of (services) contracts one can wonder whether a wide exclusion of indirect damage, immaterial loss, loss of revenue, etc., does not encompass virtually all possible loss and therefore prevent any indemnification in case of liability.

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

Don't hesitate to reach out to Olivier Vanden Berghe, should you have any questions.