1.2 The purpose of exclusion clauses
There are two different approaches to the purpose of exclusion clauses:
- One approach would use the whole of the contract, including any exclusion clauses, to define the obligations set out in it.
- The other approach would be to define the obligations set out in the contract without reference to the exclusion clauses. The exclusion clauses would then be used as defences when necessary.
Cheshire, Fifoot and Furmston’s Law of Contract (Furmston, 2017, Chapter 6) suggests that which approach is taken to the purpose of an exclusion clause usually depends upon the wording of the exclusion clause being considered. However, exclusion clauses are more commonly viewed as a defence.