The Impact of Civil Intent on the Exclusion Clause of Liability

The emergence of factories and large companies after the Industrial Revolution led to the consideration of a means to release of liability. Consequently, the condition of liability exemption appeared in Europe and Britain, which holds a significant importance and impact, as it results in the debtor being relieved of their legal liability. Although, this is considered a devation from the principles of justice, the legislator accepted it based on economic justifications. In addition, the jurists have not agreed on meaning of the condition of exemption from liability, as the matter has become confused with closely related topics, particularly regarding the condition for exemption from a specific obligation. This confusion arises from the lack of distinction between what affects the condition. The research suggests that the Iraqi legislator should explicitly state the invalidity of the condition of exemption from obligation, as this would make contracts are isolated from their meanings. The importance of the condition of exemption from liability is related to the intent of the parties, and thus, intent has a significant impact on its provisions. Consequently, the existence or absence of the condition of exemption from liability is linked to the presence or absence of civil intent. Given the importance and seriousness of the subject, the legislator intervenes to regulate its provisions. Although, he permits to deal with it, this does not extend beyond de minimis or slight fault. However, if the matter exceeds this and reaches the level of gross error or fraud, the condition becomes void based on the debtor's intent. In some cases, the legislator may annul the effect of the civil intent of the parties and disregard it, leading to the invalidation of the condition, especially when it concerns bodily harm. Additionally, the condition might be recognized to exist even if the parties have not explicitly agreed upon it.