How do disclaimers apply in practice?

 

A disclaimer is a contractual clause that seeks to limit the application of some of the terms of a contract or is otherwise a denial of a party’s right or liability under a contract. While they may sound good, a disclaimer is not necessarily enough to defeat a claim in all circumstances, particularly if a party has provided incorrect information or engaged in misleading and deceptive conduct, as was found in Havyn Pty Ltd v Webster [2005] NSWCA 182.

Disclaimers can act as a mitigating factor, but it will only be one of the many factors that the court will consider when determining any liability for misrepresentation including the nature of transaction, sophistication of the parties, the nature of the representation and the expertise of the person providing the representation.

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