Maximize Your Contract’s Exculpatory Provisions

Law360, New York (July 15, 2013, 12:19 PM EDT) -- When faced with exculpatory provisions that limit or even nullify their damages, plaintiffs often attempt to avoid these provisions by arguing that the contract did not adequately incorporate them or that pages were missing at the time of contracting.

Three recent federal opinions illustrate how contracts should be constructed to avoid plaintiffs’ tactic of post-incident, à la carte selection of contractual provisions. Counsel should keep these decisions in mind when drafting multipage contracts that include exculpatory provisions and also when litigating cases involving the issue of...
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