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The notion of “wilful misconduct” and its impact on the scope of limitation of liability clauses

Author: Peter ROSHER

Type: Article

ref: 62018529-535

N0:6 of 2018

Pages: 529-535

Allocation of risk in commercial contracts-often through contractual limitations or exclusions of liability-is of significant practical import and helps provide a certain degree of legal certainty. However, parties will often seek to impose strict confines on any limitation or exclusion of liability in the form of “carve-outs”; detailed restrictions that define the scope of any limitation or exclusion clause. The article takes a look into the notion of “wilful misconduct”; a common carve-out that is increasingly used in commercial contracts subject to English law, but whose definition is far from clear and definitive. Through a comparative approach between English and French law, we examine whether it is possible to assimilate the notion of wilful misconduct into French law. In addition, it will be determined that the inclusion of a definition of any carve-out, notably for wilful misconduct, is highly recommended in commercial contracts subject to English law.