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INDEMNITY CLAUSES AND THE IMPLICATIONS OF THE PROHIBITION TO CONDONE FUTURE MALICE IN ECUADORIAN CIVIL LAW
Indemnity clauses are agreements that are frequently inserted in contracts between sophisticated parties. They have been imported into civil systems because they are effective tools for risk allocation and future contingency mitigation. One of their categories is the covenant by which the beneficiary remains indemnified from damages caused to third parties, even if they have acted with fraud or gross negligence. However, Article 1481 of the Ecuadorian Civil Code prohibits the remission of future fraud. Based on this, the validity of this type of clause has been questioned for supposedly falling under such prohibition. This paper examines whether indeed the stipulation entails forgiveness of future fraud or, on the contrary, if both figures have elements that differentiate them from each other. In this way, the possibility of accepting the validity of the clause will be proposed.
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THE SYSTEM OF DAMAGE-LIMITING CLAUSES: INVENTORY AND PERSPECTIVES
Liability provisions in contract law have led to feverish debate in France. Initially, French law granted validity to provisions limiting or excluding liability even while barring such applications in the case of malicious intent or gross negligence. however, on October 22, 1996, the situation changed when the commercial division of the French Cour de Cassation handed down its ruling in the Chronopost case.
This article will review the current status of clauses restricting damages, the recent application of Chronopost jurisprudence and perspectives for the future of such provisions.