Abstract

DIAZ LINDAO, Indira. Contract liability in modern law. Rev. Derecho Privado [online]. 2012, n.23, pp.127-178. ISSN 0123-4366.

Abstract The limits of liability clauses they are a topic of traditional importance in the general regime of contract law, which moreover has become a major protagonist in the discipline of contracts of adhesion and consumption. In the European and Latin American countries belonging to Roman legal tradition, they find their origin in the banning of the agreement to waive liability for future willful misconduct and gross negligence. Limit of Roman origin, which placed the control of these clauses in the sphere of execution of the contract. Previously, they act as limits of these clauses the public order and good customs, on the one hand in the protection of fundamental legal rights such as life and physical integrity of persons and secondly, as a mechanism of protection of the weak part of the contractual relation in determined contracts types. Finally, in response to the problematic properties of the contracts of adhesion and consumption, these limits are currently focused on the balance that must exist between the obligations of the parts, of according to the principle of good faith. In the last legislative and judicial tendencies, this balance results as a translation, on one, of respect for the essential obligation of contract in direct relation to the cause of the contract and on the other, in the finality or the essence of the contract that's a result of the legal type or of nature itself. The limits of liability clauses are transferred to modern law, from the sphere of execution of the contract to that of its' configuration. As a natural consequence of it, these limits are converted at the same time into an indirect mechanism of control of contractual freedom that have parts to determine the object and the obligations of a contract.

Keywords : limitation of liability clauses; willful misconduct; gross negligence; public order; good uses; essential obligation of contract; balance of contract; good faith; object of contract; nature of contract; contract type.

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