Limitation and exclusion clauses: symmetric and asymmetric relationships

Abstract

The subject of limitation and exclusion clauses takes on different contours depending on the specific conditions of the contract in question. While such a clause can provide, when freely negotiated, a “fine-tuning” of the allocation of risks between the parties, as well as a greater degree of predictability with regard to the effects of non-performance, it may also represent, in asymmetrical contractual relationships, the product of the imposition of the strongest party’s bargaining power, serving to further deepen the contractual imbalance. For this reason, the legal treatment, with regard to the validity or invalidity of such clauses, cannot be the same: while in consumer relationships the rule must be the invalidity of these provisions, in freely negotiated contracts, on the other hand, the rule must be the validity of these provisions, in deference to private autonomy.