The Court of Appeals held that the exculpatory clause
addressing lost data was not ambiguous, and was enforceable.
(66) The defendants argued, alternatively, that they were protected from liability because they had relied on the work of other officers and employees as is permitted by North Carolina law, and that the director defendants were protected from liability because of the express elimination of liability provided by an exculpatory clause
in Cooperative's articles of incorporation.
prohibits an exculpatory clause
and obviates the potential for
(221) Section 96, which had no equivalent in the Second Restatement, addresses trust forfeiture clauses in the same provision as it addresses clauses that exculpate trustees from liability, explaining in the general comments that both are "commonly used types of trust provisions" that have the effect of insulating trustees from liability or "from litigation over trust administration." (222) More specifically, section 96(1) enforces such an exculpatory clause
so long as it was freely negotiated, applies only to negligent (not bad faith) conduct, and does not relieve the trustee of "accountability for profits" deriving from the breach.
An exculpatory clause
generally does not offer protection against claims for breaches of the duty of loyalty, intentional misconduct, knowing violations of law or actions not taken in good faith.
contract but without the exculpatory clause
. (67) Subjects were asked to
In many cases, the limitation language, exculpatory clause
, or waiver of subrogation may well apply.
(186) This is fitting, for the crux of the usual contention that class waivers are unconscionable under applicable state contract law (187) is a permutation of a cost-based argument--namely, that the underlying claims are economically viable only in the aggregate, such that the class waiver functions as an exculpatory clause
. Two observations bear attention in connection with this cost-based thread of the unconscionability argument.
An overbroad exculpatory clause
may be stricken by the court, thus defeating the original intent of the settlor or testator.
Why is the exculpatory clause
incompatible with the principles of ethical research?
(95) Purcell sued Beechcraft; however, the contract for the inspection provided that Beechcraft's liability was "limited to the cost of services performed hereunder." (96) The provision, which the court characterized as an exculpatory clause
, did not expressly mention "negligence," "fault" or "an equivalent." (97) Nevertheless, the court limited Beechcraft's liability pursuant to the parties' contract.
The question is: Can a CPA performing attest services include an exculpatory clause
or a limitation of remedy in the engagement letter?