There is a saying Lamhon ne Khata Ki, Sadiyon ne Sazaa Payi... (a moment of mistakes, punishment for centuries).
Such is the plight sometimes of a party to a contract. Smallest of oversight or violation can result in disproportionate liability or exposure, sometime not remotely commensurate with the value of the subject matter. It's not only monetary cost but also reputational risk involved.
When it comes to limiting liability or exposure in a contract for yourself or a client, here are some points that you may keep in mind.
Homework
Prior to entering into any contract, conduct a thorough review of the other party's background, reputation, financial stability, and track record. This can help identify any potential red flags that may increase your exposure to risk. This sort of filteration is also handy in identifying habitual blackmailers !
Scope and responsibilities
Outline each party's responsibilities, duties, and expected outcomes as precisely as possible in the contract . This may help in mitigating any potential misunderstandings the parties and significantly reduce the possibility of liabilities arising from ambiguous terms.
Indemnity
Incorporation of appropriate Indemnification clauses can shift the liability from one party to another in case of certain specified events or claims. Ensure that the language is comprehensive, and fair to both parties.
Limitation of liability
This is the most important part of the matrix. This clause limits the amount and variety of damages that can be claimed by the other party for an alleged breach of a term or loss suffered by such party. Careful craftsmanship is required to define the limitations and exclusions of specific liabilities.
Insurance
Buy a insurance coverage of a decent amount that can protect you against any potential liabilities arising from the subject contract, if available. The insurance coverage may include among others, professional liability insurance, general liability insurance, or specific coverage based on the nature of the contract.
Dispute resolution ecosystem
Create an effective ecosystem for resolving any disputes between the parties arising out of the contract, e.g., mediation or arbitration. Specify the governing law to provide clarity on the legal framework within which the contract shall operate, potentially limiting exposure in certain jurisdictions.
Experts Advice
Consult a qualified professional experienced in contract law to review and provide guidance on the contract terms and conditions. He may identify potential risks and advise you on formulating an effective strategy to limit your potential liability or exposure.
Above suggestions, however, are only general in nature and may vary depending on the specific circumstances and jurisdiction. This should not be taken as a legal opinion. Seek legal advice to customise your contract to your specific requirements.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
