Which the courts have traditionally adopted courts

which the courts have traditionally adopted. Courts have traditionally seen exclusion
clauses as performing a defensive function. On this view a failure by Peter to deliver
the goods safely to Preston constitutes a breach of contract and the role of the
exclusion clause is to provide Peter with a defence to John’s action for breach of
contract.
Yet a closer examination of this traditional view reveals a serious difficulty. The
difficulty is that Peter has not accepted an absolute obligation to deliver John’s
goods; such a conclusion could only be reached by ignoring the exclusion clause

11.2
when defining Peter’s obligations. But why should the exclusion clause be ignored in
defining Peter’s obligations, when it is via the exclusion clause that Peter has sought
to define the extent of his obligations and it is only by this means that he can offer a
service at a price lower than that of his competitors? There can surely be no
justification for ignoring the exclusion clause in this manner. The clause is simply
one means, albeit an important one, by which Peter has attempted to define his
obligations. If this view of exclusion clauses is accepted, the justification for
subjecting exclusion clauses to distinct regulation largely disappears because such
clauses then become functionally indistinguishable from every other term of the
contract which assists in defining the obligations which the parties have accepted
towards each other (this theory was initially developed by Coote, 1964, and is also
supported by Yates, 1982).
The argument that exclusion clauses define the obligations of the parties has been
attacked by Adams and Brownsword (1988a) on the ground that it is ‘elegantly
formalistic’ and that it ignores ‘both the historical development of the problem, and
the realities of the situation’. The ‘historical development’ is that the growth in the
use of standard form contracts has been accompanied by a growth in the use of
exclusion clauses and the ‘realities’ of the situation are that such terms are offered on
a ‘take it or leave it basis’. In short, these standard form contracts, which so often
include sweeping exclusion clauses, are imposed on the weaker party to the
transaction. They take away the rights of the weaker party and nullify his
expectations rather than define the obligations of the parties. But it is only by looking
outside the contract for the initial existence of these ‘rights’ or ‘expectations’ that
exclusion clauses can be said to ‘take away’ the ‘rights’ of the weaker party or nullify
his ‘expectations’. These ‘rights’ and ‘expectations’ must exist outside the contract
because the contract as a whole certainly did not confer them upon the weaker party.
How then are we to ascertain the scope of these ‘rights’ or ‘expectations’? Are they to
be found in some conception of ‘public policy’? Proponents of the ‘defensive’ view
of exclusion clauses do not tell us. Surely the evil which we are seeking to eradicate
is not the existence of exclusion clauses or even simply the existence of