10.1 Introduction

Parties are free to exclude or limit their potential liability for damage caused by a breach of contract or a tort by agreeing on an exemption clause (' exoneratieclausule'). A court may only limit the right to invoke an exemption clause in exceptional cases. According to the Saladin/HBu judgment of 1967, whether an exemption clause may be invoked depends on the weighing of many circumstances, such as:

the degree of culpability, also in connection with the nature and gravity of the intererts at stake;

the nature and further content of the contract in which the clause is included;

the social position and the relative position of the parties;

the marmer in which the clause came into existence;

the extent to which the other party was aware of the clause's purpose.

Exemption clauses are generally tested against the 'limiting effect of the principles of reasonableness and fairness' (derogerende/beperkende werking van de redelijkheid en billijkheid). This means that a court can refuse to enforce such a clause based upon those principles. There are three ground rules that must be respected when applying this test. First, the standard is whether invocation of the exemption clause would be unacceptable on the basis of the principles of reasonableness and fairness, and therefore not whether its invocation would be contrary to those principles. A higher threshold must be met to satisfy the first test than the second. Second, in contracts between professional parties, it can be argued that extra restraint must be exercised when determining whether an exemption clause is unacceptable. Third, in making the determination, all relevant circumstances must be considered.

In this book, I first analysed the Saladin/HBu circumstances. In each case, I assumed that an exemption clause in a contract governed by Dutch law is concluded between professional parties (a supplier and a customer) that are both legal entities resident in the Netherlands. I then applied, as much as possible, the knowledge I had acquired to the supplier-friendly FENIT1 conditions of 2003 and 1994 and the customer-friendly BiZa2 contracts (in particular, the software licence agreement). I reached the following conclusions.3

In the past, exemption clauses were tested against good morals (goede zeden). Nowadays, they are tested against reasonableness and fairness. Some writers argue that both tests should be used, first the good morals test and then the reasonableness and fairness test. According to these writers, this would result in legal certainty (rechtszekerheid) because, among other things,

(i) application of the good morals test involves weighing a limited number of circumstances whereas application of the reasonableness and fairness test involves weighing an (in theory) unlimited number of circumstances, and (ii) a failure to pass the first test would make it unnecessary to apply the second, more extensive test. I disagree with these writers because even if the number of circumstances under the good morals test were indeed limited, and even if these circumstances could be identified, there would still be no consensus on the question of which exemptions clauses are, and which are not, contrary to good morals. Take what would seem to be the most obvious example of a circumstance in which the invocation of an exemption clause should be contrary to good morals, i.e. in the case of w-ilful misconduct (opzet). Although many authors indeed take this position, there is nevertheless no consensus. This means that almost all exemption clauses would still have to reviewed under the reasonableness and fairness test. Since the introduction of a good morals test prior to the reasonableness and fairness test would seem to have little added value, I believe that combining both tests does not make sense.

In practice, situations often arise in which a customer may choose whether it wishes to have an exemption clause reviewed under the unreasonablyburdensome test (Art. 6:233 (a) Netherlands Civil Code) or the reasonableness and fairness test (Art. 6:248 (2) Netherlands Civil Code). Under the first test, only circumstances which occurred prior to or at the time of the conclusion of the contract may be considered. Under the second test, circumstances which occurred after the conclusion of the contract may also be considered. Given that the second test, by its nature, also encompasses circumstances which are relevant for the first test (and not vice versa) and given that there is no mater-ial difference between the criteria 'unreasonably burdensome' and 'unacceptable on the basis of reasonableness and fairness', I decided to limit my investigation to the reasonableness and fairness test.