Talk:Exclusion clause

"Contra preferentem - the clause is contrued against the person trying to take advantage of the rule." Isn't the usual meaning of this rule that the clause is construed against the person who drafted the contract, rather than the one trying to take advantage of the rule? 64.103.37.71 11:58, 18 April 2006 (UTC)

Not in Australia at least. If it's different in the US, add that in, with citations. enochlau (talk) 13:11, 18 April 2006 (UTC)

"Contra proferentem" means against the proferens, the person relying on the clause. Generally this is also the person who wrote the contract, but I think it's sloppy to think of it that way. --Cliau 00:24, 25 June 2007 (UTC)

""Contra proferentem" means against the proferens, the person relying on the clause." No, the proferens is the peson who introduced the Clause, not the person seeking to rely upon it. It applies only where the clause was imposed by one party upon the other, rather than agreed in the course of negotiation (although there is some dispute whether it applies only if the individual term was not negotiated or if the entire agreement was unilaterally imposed (for contrasting views compare the definitions in the Unidroit Principles of International Commercial Contracts to the version in the proposed Principles of European Contract Law). It is premised on the notion that a party who can force a term upon the other has the opportunity to make their meaning absolutely plain. If there is any ambiguity about its meaning in a particular circumstance therefore, there is a presumption that this is because they did not mean it to apply in those circumstances in the way in which they contend at the point of dispute arising. For application of the principle see for instance the Scottish Court's decision in Aitken's Trs v Bank of Scotland 1944 SC 270. I would be surprised if alternative definitions apply elsewhere in the world and would certainly be interested to see a verifiable source for any such claim. --Antisthenes 09:39, 1 July 2007 (UTC)