Professional Liability

[dik]

Is it possible in any/most jurisdictions, if you have a knowledgeable client, to contract out of extent of liability? Can liability be limited to fees or have an upset value?

Dik

 

[Atomic25]

I see a lot of geotechnical firms insert these types of limiting clauses into their contracts for soils investigations, but aren't sure if they'd really hold up in court.

 

[davidbeach]

Terms in the contract, signed by both parties, are binding. Many clients who actually read the contract may well object to a strong limitation of liability, but it is always good to start there and see what works.

 

[theCorkster]

A limitation of liability in a contract will hold up in court, provided the client has contractual experience. A limit of liability can be over-turned if it can be proven the contract was signed by someone not familiar with contracts - know who will be signing. If the client is contract savy and uses and signs many contracts, the likelihood of the contract being overturned goes down. Highlighting the limitation clause and limits, therefore bringing specific attention to it, should reduce the likelihood even further.

 

[Ashereng]

I many jurisdictions, there are legislative limits barring what may be "contracted out" with regards to liability.

One common example is the "waiver" forms at amusement parks, for various rides, ski hills, etc. For the most part, they are not worth the paper they are written on.

This is probably a really good topic to bring up with your lawyer.

"Do not worry about your problems with mathematics, I assure you mine are far greater."
Albert Einstein
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[msquared48]

My lawyer told me to go ahead and limit whatever I could int he contract that the client would agree to. Bottom line is that the court will definitely not grant the limitation if you do not include it in the contract. They MAY if you include it. (probably not though in reality where I live, but I ask anyway).

Mike McCann
McCann Engineering

 

[dik]

Thanks, I know there are issues like lien rights that cannot be changed by contract and again it likely depends on the jurisdiction. The contract then becomes proscribed.

I was just wondering that if it were acceptable, then most engineering contracts would insert this type of limitation and the prolonged exposure to liability would 'disappear'. Seems odd that some professional associations have difficulty reducing the period of limitation if it were a simple matter of including this in an agreement. Again, the awareness of the client to contracts would be a big factor.

Dik