June 01, 2017The Supreme Court of Canada held that parties are not free to exclude general duties of contract law, so entire agreement clauses cannot exclude general duties related to unconscionability and honesty in contractual performance. See the instant case of Bhasin v. Hrynew [2014] 3 SCR 494, 2014 SCC 71 (CanLII).
June 01, 2017Limitations of liability clauses and entire agreement clauses can be unenforceable because of unconscionability. In determining whether the clause is unconscionable a court will look at various factors such as the sophistication of the parties, the disparity in bargaining power and information, and failure to bring the clause to the attention of the party with less bargaining power.
June 01, 2017Trial Required to Properly Interpret Ambiguous Limitation of Liability Clause. See instant case of Astellas Pharma Canada Inc. v. WellSpring Pharmaceutical Canada Corp. 2008 CanLII 46324 (ON SC).
April 13, 2017Landing a huge contract is exciting - and risky! The stakes are high when a large proportion of your business’ resources are dedicated to an important project - especially if the contract is terminated prematurely by the customer.
September 24, 2015A recent UK High Court decision, (Polypearl Ltd v E.On Energy Solutions Ltd), emphasized the importance of business common sense in interpreting a limitation of liability clause.
August 25, 2015Both vendors and purchasers have a strong interest in ensuring that the ownership of all liabilities has been clearly allocated by the APA. When drafting an asset purchase agreement, the buyer will likely negotiate for narrow assumed liability and broad excluded liability.
July 07, 2015Indemnities originated in the construction industry where contractors had complete control of the job site, and owners required them to be responsible for any site-related problems that arose.