There are a number of other common law limitations on the effectiveness of exemption clauses. Although their importance is much reduced, they still have some practical importance in cases to which statutory limitations do not apply.

No protection for third parties

As a result of the doctrine of privity, which states that only the parties to a contract can sue on it, the courts have held that a person who is not party to a contract (called a third party) cannot be protected by an exemption clause in that contract, even if the clause is stated to apply to them. The leading case in this regard is Scruttons Ltd v Midland Silicones Ltd (1962).


Where a party putting forward an exemption clause misrepresents its effect, the clause will not be binding on the other party. The case of Curtis v Chemical Cleaning & Dyeing Co. Ltd is illustrative of this position.

Inconsistent oral promise

An exclusion clause can be made wholly or partly ineffective by an oral promise, given at or before the time of the contract, that conflicts with it.

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