Research On Exemption Clause Of Format Contract

Standard exemption clause means that the exemption clause is written in t he contract by terms of standard clause. The other party can’t negotiate with the supplier, and the content includes avoiding or limiting the liability of the s upplier or aggravating the liability of the other party or excluding the main rig hts of the other party. The mass existence of the standard exemption clause is based on the huge need of the effective commercial trading and the dominant monopoly position of the clause supplier. Due to the lack of the special legisl ation of it in our country, the judgment of the force in our current law has be en into comparative conflict, thus leads to a controversy in the process of iden tification. This article hopes to clarify the determination of the force of the sta ndard exemption clause by studying and analyzing the problem and combining with the related theories to evaluate our current law.Generally speaking, this article first reveals the premise of the determinati on of the force of the standard exemption clause. That is, whether the standard exemption clause is written into the contract is the premise of its force. Base d on the inequality of the content, it needs both of the parties’ agreement to write into the contract. While the standard exemption clause can’t be negotiat ed, the supplier has the liability of prompting and interpreting while written int o the contract. But in the commercial contract, based on the similarity of both party, and the equal ability of absorbing and understanding the information, th e rule of written into the contract has its own specificity. The prompting and i nterpreting liability of the supplier may ease under the exact trading situation.The second is to analyze the rule of determining the force of the standard exe mption clause systematically, including the general rule and the specific factors. As to its legal nature, it belongs to the contract instead of a law or factual c ontract. The force determining rule must obey the legal regulation of the gener al contract. Since the standard exemption clause involves the prior disposition of the whole or part of one party’s liability, the other party cannot negotiate with the supplier. These particularities lead to some special rules to balance th e interests of both parties. At last, this article raises the force determining rule s of the standard exemption clause. In early times the court used to be hostile towards the interpretation of this problem, which deemed that all the standard exemption clauses had no force. This was based on the protection of the publ ic interest, tended to protect the comparative weak relative party. But this negl ected the positive value of it. Most of the standard exemption clauses practical ly are the consideration of normal and rational risk distribution of both parties, which also reflect the pursuit of the trading efficiency. If the standard exempt ion clause is deemed as ineffective, it will deprive the right of the related part y to claim it effective. This will lead to another inequality. This article won’t deny the force of the standard exemption clause, and raises some concrete rule s towards the interpretation, hoping to get a further understanding of the force determination. Specifically, this article includes the following content.This thesis is divided into three chapters:The first chapter analyzes the setting rule of the standard exemption claus e. Based on the analysis of the basic concept, emphasizes on discussing and a nalyzing the written rule of the consuming contract, which is the most suitable area for the standard exemption clause coming into use. At the same time, it analyzes the special type of the writing in the commercial contract, hoping to get a deeper understanding of it. Besides, this chapter also evaluates our curre nt legal regulations. The analysis of this chapter is the premise of the followin g contents, which reveal the force and the explanation.The second chapter analyzes the forcing determination of the standard exe mption clause, which specifically discusses and analyzes the general rules and t he particular factors. The general rules include the consideration of the mandat ory provisions of the law and the basic civil principles when determining the f orce of it. The particular factors contain the analysis of some actual reference valuable contents, including the prior order of the involved interests, the nature of the subject matter, the theory of the risk distribution, the condition of the fairness, the extent of the fault and default and so on. Besides, this chapter als o comments our current regulations, and this chapter is the main part of this a rticle.The third chapter analyzes the related rules about the force interpretation of the standard exemption clause. At first, it discusses the historical process of the interpretation, reveals the irrationality of the denial of the force of it. Secondly, it discusses the problem, which is whether the standard exemption clause needs individual interpretation or interpreted with the other clauses of the contract. It deems that the interpretation needs to follow the rule of overall interpretation, and must consider the position in the whole contract. At last, it discusses the particular interpretation rules of the standard exemption clause, including objective interpretation rule, limited interpretation rule, strictly interpretation rule under irrational management. And it evaluates the particular interpretation rule of the standard exemption clause combining with our current law.