INTERPRETATION OF PART II (Hansard, 6 May 1977)

§ The Lord Advocate

I beg to move Amendment No. 36, in page 12, line 40, at end insert— (4) In sections 14 and 15 and 18 to 20 of this Act, any reference to excluding or restricting liability for breach of an obligation or duty shall include a reference to excluding or restricting the obligation or duty itself. The purpose of this amendment is to close a potential loophole in the control imposed on the exemption clauses in Clauses 15 and 18 to 20.

At present these clauses either render void or make subject to the reasonableness test certain terms in a contract which exclude or restrict liability for breach of duty or equivalent obligations in contracts for the supply of goods.

It is conceivable that parties to a contract may seek to avoid the controls imposed on these exemption clauses by inserting provisions in their contracts which purport to exclude or restrict, not the liability for breach of the relevant duty or obligation, but the relevant duty or obligation.

In order to close this potential loophole, the amendment proposes that in these clauses and in Clause 14 any reference to excluding or restricting liability for breach of an obligation should include a reference to excluding or restricting the obligation or duty itself.

This amendment is similar in effect to the corresponding English provision in the tailpiece of Clause 12 (1). I hope that the House will approve the amendment.