(149) Therefore, a director protected by an
exculpatory clause will be insulated from any harm that results from a decision, even if the director made a decision with less information than an "ordinarily prudent person would have exercised under similar circumstances." (150) In effect, exculpatory provisions preclude monetary damages stemming from a breach of the duty of care.
leaves no room for an
exculpatory clause and allows suits for ordinary
A Proposal for Enforcing Trust Forfeiture Clauses: Using
Exculpatory Clause Law as a Model
contracts included
exculpatory clause were less likely to report that
He bases that recommendation on the reports that lightning caused the fire (and you cannot subrogate against God), the building is more than 50 years old (so there are likely statutes of repose issues) and the lease appears to have contractual provisions--such as
exculpatory clauses or waivers of subrogation--that will limit or preclude recovery.
The question becomes whether the arbitration clause stands to "significantly affect the result of a litigation" in the sense of operating as an
exculpatory clause. (201)
If a trustee or trustee's firm assisted the settlor or testator in drafting the document and the
exculpatory clause, a court may rule that the trustee drafted the clause to protect himself, thus breaching his fiduciary duty.
(98) Under Purcell, for sophisticated parties (loosely equated with "commercial entities"), less precise language will effectuate an
exculpatory clause. The Purcell court draws a rigid dichotomy between sophisticated and ordinary parties, (99) and it is not the only court that takes this approach with respect to
exculpatory clauses.
District Court for the Southern District of New York, the court in a bankruptcy-law context held enforceable an
exculpatory clause that absolved a financial advisor from liability due to ordinary negligence.
In cases where a ban on class actions serves as a corporate
exculpatory clause, a number of courts have held that they are unenforceable because either they are unconscionable or they violate a state's public policy by undermining state consumer protection or civil rights statutes.
Exculpatory clause: A clause in contract holding one party harmless in the event of same default.
exculpatory clause which may excuse defendant from performing.
