Limitation Of Liability Clauses In Contracts For Large-scale - GRIN
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It is generally accepted that limitation of liability for physical damages cannot be considered separately from defects liability; this understanding is particularly important in relation to general terms and conditions. It is necessary, yet challenging, to examine the exact conditions and consistently match limitation of liability clauses with the insurance conditions. In the FIDIC Silver Book template, liability is limited to the contract price. The survey of the Federal Ministry of Justice and Consumer Protection can serve as a good example for this criticism. When examining contract law for work and labor, new laws should be considered. However, several laws can lead to conflicts and it is important to consider the mandatory rules of the law of the place of performance that can override the chosen law. If German law is applicable, the question of whether provisions based on the staatsanleihen investieren FIDIC templates are general terms and conditions arises.
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However, the specific regulatory needs for megaprojects should also be considered. Latent risks that cannot be foreseen by the controlling party should be insured and covered.83 However, even when other contract parties and insurance companies share liability for most risks, regulatory needs must be considered. In individual contractual agreements as well as in general terms and conditions, no liability can be excluded in advance due to the liability for willful intent. Two new indemnities are incorporated, the employer indemnity related to property damage and the contractor indemnity related to fitness for purpose obligations. Moreover, contractors’ total liability is established in the contract data or by default in the accepted contract sum.125 However, the new Clause 17 has not changed significantly, the contractor remains responsible for any loss or damage to the plant construction works until the issuance of a taking-over certificate, except in the cases where damages were caused by risks for which the employer is responsible, according to the clauses 17.1. and 17.2. of FIDIC Silver Book 2017.126 These risks are nearly the same as the employer's risks identified in the 1999 versions.127 Moreover, insurance plays an important role and is addressed by Clauses 17 and 19. Relevant types of insurance include those covering indemnities for personal injury, death and property damage as well as PI insurance for errors or omissions in carrying out the obligations specified in a contract.
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Essentially, purpose means that the contractor agrees that the work will meet the employer’s demands. However, it can be challenging for specialized legal advisers to formulate appropriate and legally accurate limitation of liability clauses, in particular, meeting the specific demands of complex megaprojects. At the beginning of a megaproject, it is recommended to examine both typical and specific demands of different contract parties, make necessary adaptations and identify an optimal strategy. It is a complex issue and risk management strategies impact all parts and parties of a project from the beginning. These indemnities are excluded from cases involving loss of profit and indirect losses and their consequences. Contract parties can forgo choosing a court, but this is a risky strategy. Conversely, in some cases, and in megaprojects in particular, such templates can be considered only as a checklist or a starting point to identify an optimal risk strategy for all parties.
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In other cases, freedom to maneuver remains part of the secondary obligations of a contract. Negotiations are an integral part of optimal strategies for contract design: the counter reactions and interests of contract parties should be evaluated since projects have a long duration. Depending on negotiating power, the consequences can be disastrous if the value of the damaged part is disproportionately larger than the cost of the resulting damages. Though German law provides more freedom through individual agreements, it lernen zu investieren is almost impossible to negotiate with every partner over limitation of liability clauses in larger projects. The survey indicates that in larger companies, legal experts have more available resources to question the existing limits and use the freedom to maneuver. Megaprojects have an enormous impact on many countries, which is not surprising because many resources are involved in such projects. Some legal experts and FIDIC consider this step a sign that the main limitation of liability clause shall apply more generally and not only to contract parties’ indemnities.124 According to Sub-Clause 1.14, neither party is liable to the other for any loss of use of the works, loss of profit, indirect or consequential loss. For example, courts will likely opt for interpretation based on common law in cases involving FIDIC templates.160 In 1999, FIDIC Red Book Clause 20 FIDIC notably introduced its own dispute resolution system, the Dispute Adjudication Board (DAB), with the goal of making the procedure more effective. In general terms and conditions, the exclusion of defects liability is not allowed; contract parties should be given the right to subsequent performance and a choice between the right to reduce the purchase price or withdraw from the contract.
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