Research On Exemption Clause

The thesis makes a research on exemption clause. The following contents are discussed in this thesis: the characters, classification, function, rules of entering into a contract, regulation of effect and interpretation of exemption clause. Through discussions on those above contents, the author believes that the rules of exemption clause entering into a contract should include express rules, rules of counterpart's consent and exceptional rules; the combined method of compulsory regulation and general regulation in effect of exemption clause should be adopted and a principle of interpretation that is beneficial to the counterpart should be followed. There are total four parts in this thesis.Part One, the author introduces the characters,classification and function of exemption clause. First, the characters of exemption clause are defined: first, exemption clause is a certain contract clause; second, exemption clause is appointed in advance; third, the liability that exemption clause exempts or limits is the liability in the future; fourth, the aim of enacting exemption clause is to exempt or limit liability. Then, the author illuminates the classification of exemption clause. Exemption clause can be divided into different groups according to different standards, such as exemption clause and limit clause; consultation clause and adhesion clause; consuming clause and commercial clause. The focal research on this thesis is defined, namely, adhesion clause. At last, the author introduces the function of exemption clause. The existence of exemption clause lays the foundation of the enforcement of strict liability. The use of exemption clause has obviously economic rationality. The concerned parties can distribute the risk rationally through concluding exemption clause. However, the use of exemption clause has certain negative effect. The drafter of exemption clause often utilizes the clause to exempt his liability unreasonably and aggravate the counterpart's liability, thus does harm to the counterpart's interests.Part Two , the author illuminates the rules of exemption clause entering into a contract. The author distinguishes offer and acceptance to illuminate the rules of exemption clause in the course of concluding. Firstly, the express rule at the stage of offer is illuminated. At the same time, the author points out that we should specifically analyze what is sufficiently express show according to the appearance of files, the way and degree of express show. In addition, the author proposes that we should draw lessons from other countries', giving the counterpart some cool period in the course of concluding the contract, so that he can have the opportunity to understand the contract clause. Secondly, the rules of counterpart's consent at the stage of acceptance are illuminated. The counterpart can show his consent in express way, namely, "To Sign is to Agree". He can express his agreement in implied way as well. That is, he can express his consent by accepting the goods or service offered. The implied consent is a certain presumption, if the counterpart objects to it, he should bear onus of proof. Finally, the author points out that there is a exceptional rule except for the two above, that is, abnormal clause can not enter into the contract. Abnormal clause is also called unusual clause, it is a contract clause that the counterpart can not predict under usual transaction situation. If a certain clause is so unusual that the counterpart can not predict, it can not enter into the contract even if the counterpart sign to agree. The author points out that we should judge whether a clause is unusual from three aspects: contents, language and way of expression. In addition, if the drafter has given the counterpart the motion to pay attention to the unexpected clause, and the counterpart has accepted it, the counterpart can not maintain the clause should be invalid just because it is unusual.Part Three , the author illuminates the regulation of effect of exemption clause . The author proposes that we sho...