In the event of a breach of contract, an exclusion clause may not always exclude the parties from liability, but it will help protect it in certain situations, as stated in the agreement. For an exclusion clause to fulfil its objective, it must be clear and practical. Total exclusion of clauses is more difficult to enforce and if they are not properly written, the courts will not apply them. The question, then, is what are the “provisions of the law of this other country that cannot be derogated by unity.” In other words, what is ius cogens here? This is difficult to determine because there is no catalogue in legal law and/or clear jurisdiction. With regard to the terms and conditions, it is often considered, without further consideration, that strict German law in No. 305 is notably considered ius cogens (Magnus, Staudinger, International Contract Law Vol. 1, 2016, art. 3 Rome I-VO, No. 146; OLG Frankfurt a.M., judgment of 1 January 1989, NJW-RR 1989, 1018; Martiny, Monchner Commentary on the BGB, Vol. 2, 7th edition 2018, Rome I-VO Art.
3 No 86-88); Other provisions that can be waived include sections 225, 276, para. 3, 312 and al,444, 491 and al,440, 611 bis, 651 LGB (as is currently the case). A comprehensive contractual clause often contains the following: 2. Each party acknowledges that, at the time of this agreement, it does not rely on insurance or guarantee (innocent or negligent) that is not included in this agreement and that it has no corrective action in this regard. See Martin Rothermel`s very useful publication on international purchases, deliveries and distribution: it contains information and compact reflections on international purchase contracts, supply and distribution (legal and judicial choice, German law – UN CISG – Swiss law in comparison, internationally binding distribution rules in 50 regions and countries, property reserves in more than 50 countries, antitrust law bases for vertical agreements in the EU and 13 other countries, as well as some comments on Incoterms). As has often been discussed, German law and German jurisdiction are very strict with regard to terms and standard agreements with pre-formed contractual terms for more than two contracts (since these are considered general terms of sale under German law, s. 305 al. 1 BGB). It is almost impossible to deviate from German law in favour of the party by using such general terms of sale. This expressly applies to the limitation or exclusion of liability or compensation clauses.
When revising a comprehensive contractual clause, there are a few important pitfalls to take into account and avoid: this free movement examines the legal and legislative approaches of exclusion clauses. In other words, contractual terms to limit or exclude liability in the event of loss and injury.