University of Khartoum

Exemption and Limitation Clauses under Sudan Law and Comparative Jurisprudence

Exemption and Limitation Clauses under Sudan Law and Comparative Jurisprudence

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Title: Exemption and Limitation Clauses under Sudan Law and Comparative Jurisprudence
Author: Elmubarak Omer, Gamal
Abstract: Contracts of sale, lease, loan, labour, assignment and other types of contracts are the tools whereby different transactions are effected whether between individuals inter se or among groups of natural or juristic persons. The contents of contracts do not rank equally in regard to their legal value. Exemption and limitation terms are of the most important categories because they delimit the boundaries of the contract. Whereas exemption terms enable a party to a contract to exclude a liability which will otherwise be his, limitation terms limit the liability of a party either by placing a ceiling for compensation, or by specifying a time limit for bringing an action. They are invariably used in standard form contracts particularly in the type known as contracts of adhesion. Now, the device of the standard form is a prevalent phenomenon of the modern society. It is used in transactions usually associated with the needs of the daily life such as electricity, water, communication...etc. The providers of these services have usually a monopoly on them. Such monopoly is apt to create inequality of bargaining powers and to put consumers in a weaker position. The law is to step in to restore the contractual equilibrium and to protect consumers. This is achieved by controlling the use of exemption and limitation terms in contracts via statutory or judicial arrangements. The legal intervention, whether statutory or judicial, is backed by economic and social dimensions. As far as the economic and social factors are variable, the need for studying exemption and limitation terms is continually renewed not only in comparative systems, but also within the same legal system. The vital importance of exemption and limitation terms at the legal as well as the economic and social levels always triggers studies. This explains why much ink is spilled in studying exemption and limitation clauses in most jurisdictions. However, there is paucity of literature in Sudan particularly at the academic level. The only available elaborate VI study was made by the late Dr. Zaki Mustafa in 1967. Thence, to study this virgin area of Sudan law is to assume a burden at once challenging and pioneering. The fact that there is paucity of local literature elevates the need for studying exemption and limitation clauses in comparative jurisdictions. A comparative handling has a twofold value: As a reference for explaining local legal rules and as a pointer toward questions yet unsolved in Sudan. It is a common goal of all legal systems to guarantee the freedom of the parties to agree on their own terms on one hand, and to guard against abusive use of contract terms on the other. The mechanism for striking a balance between these two conflicting demands differs from one system to another. It is either legislative or judicial. The degree of the legal interference is inversely proportionate to the freedom of the parties i.e. less interference means more freedom and vice versa. The problem intended to be tackled in this thesis is created by the fact that Sudan courts used to follow English law from the beginning of the Condominium Period in 1898 up to 1974. The Contracts Act 1974, due to some local factors, had deviated considerably from the pre-existing position which was based on English law. The relative ''illiteracy'' and considerations of business ''unawareness'' were the main factors which prompted the Sudanese legislature to approach the question of exemption and limitation clauses in a different way. The rationale of that approach might have been selfevident at the time the Contracts Act 1974 coming into force. However, the same provisions of the Contracts Act 1974 dealing with exemption and limitation clauses have been reenacted and adopted almost verbatim in the present Civil Transactions Act 1984. Now, more than three decades have elapsed since 1974.The question: What provisions currently govern exemption and limitation terms under Sudan law? How had Sudan courts applied them? How to deal with matters of relatively modern nature such as "standardization" of exemption and limitation clauses and ''prevention of unfair contract terms'' in ''consumer contracts'' or in other types of contracts? How to make use of comparative jurisprudence as a reference for explaining local legal rules and as a pointer VII toward questions yet unsolved in Sudan? Is there a need for reform? These questions sum-up the exact problem posed in this thesis, and the answers thereof constitute its main theme. The methodology followed in this thesis is one of exposition, comparison, analysis and conclusion. The present statement of the law as represented by the Civil Transactions Act 1984 is reviewed, analyzed and then compared: Vertically with English law and American law, and horizontally with the position of Sudan law before 1974 and the period 1974- 1984. This creates for grounds for comparison. Notably, the English system has been specifically chosen in this thesis because it is one of the important historical sources of Sudan law. It was applied for more than half a century. The American system, on the other hand, is chosen for its closer similarities to the Sudanese system, especially in regard to the method of preventing the use of abusive exemption and limitation clauses. Both systems avail the courts with wide discretionary powers to police the use of abusive clauses. The thesis consists of five chapters as follows: Chapter I: An introductory chapter consisting of three issues: The first tackles the terminology of exemption and limitation clauses, the second defines them and the third deals with their types and the grounds of their classification. Chapter II: Discusses the position of Sudan law toward exemption and limitation clauses in two issues: The first reviews the historical evolution of Sudan law and the second analyzes the relevant provisions of the repealed Contracts Act 1974 and the Civil Transactions Act 1984. Chapter III: Revises the experience of comparative systems with special reference to the English and the American systems. The reason for choosing each of these two systems is highlighted as a first issue. The second issue studies English law with reference to certain heads and the third deals with American law specifically the doctrine of contractual conscionability. VIII Chapter IV: Deals with three issues related to exemption and limitation clauses. The first is the rules of interpretation of exemption and limitation clauses and the application of such rules, the second is the phenomenon of standard form contracts and contracts of adhesion under local and comparative jurisprudence and the third is the effect of a fundamental breach on the applicability of an exemption or a limitation clause in the same contract. Chapter V: A closing chapter to sum-up the results to which this study has reached coupled with the specific recommendations. The chapter is appended with two schedules: The first comprises three lists of judicial precedents which are discussed or referred to from the Sudanese, English and American systems. The second comprises a list of references, text books and articles quoted or referred to in this thesis.
Description: 105 page
URI: http://khartoumspace.uofk.edu/handle/123456789/10267
Date: 2015-05-04


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