Agreement on Liability- Expansion, Limitation and Exclusion / Ugovaranje odgovornosti za štetu - proširenje, ograničenje i isklјučenje

Abstract

An arrangement on expansion, limitation and exclusion of liability for damages can be entered into the main agreement by both debtor and creditor, or can be entered into subsequently, as a separate agreement. As a rule, this arrangement is informal. If the law prescribes or sets the form of the agreement as a condition of its validity, it is obligatory for both parties, or otherwise it can be considered null and void. By means of agreement, contractual liability of a debtor can be expanded to legal situations for which he would not otherwise be liable under identifying provisions of the Law of Obligations. The debtor is free of liability if he proves he could not fulfill his obligation due to circumstances that arose after the agreement had been entered into, and that could not be prevented, eliminated or avoided. By means of arrangement, debtor and creditor can exclude contractual liability of the debtor for mere negligence (culpa levis) and those cases where the debtor is liable by law, regardless of his guilt. The arrangement of parties that excludes the debtor’s liability for intention or gross negligence is null and void. In that case the creditor has right to damages or full compensation. An interested party can by means of claim demand the abrogation of a contractual provision on exclusion of liability even for mere negligence, if such an arrangement came as a result of a monopoly position of the debtor or in general, from the unequal relationship between the two contractual parties. The provisions on limitation of the debtor’s liability are valid: 1. If the amount to which the debtor’s liability is limited is not clearly disproportional to the damage that later occurred, 2. If the debtor has not caused the damage intentionally or by gross negligence and 3. If the law prescribes nothing else in this certain case.