To be enforceable, all contracts must have “consideration,” which is a bargained-for exchange. For one, it is an “illusory contract.” That is, the customer’s benefit of the bargain is an illusion. For example, a mold remediation contract that states the remediator is not responsible for mold would be unenforceable for several legal reasons. Similarly, a limit of liability will not be enforced if it thwarts the primary purpose of the contract. Contracts are unenforceable to the extent they seek to absolve the drafter of the contract from his own malicious or criminal acts, acts known to be unlawful, or his own recklessness.Ĭontracts which purport to provide indemnity against liability for damages for death or bodily injury to persons, injury to property, or any other loss, damage or expense arising from the sole negligence or willful misconduct of the contractor, or his independent contractors who are directly responsible to him, are against public policy and are void and unenforceable. They will generally be unenforceable if they are found to be “adhesion contracts,” if they are unclear or vague, inconspicuous or illegible, or the result of fraud. Limits of liability should only be drafted by an experienced attorney because they are subject to intense scrutiny by the courts, especially for residential jobs.
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