SupplyofGoodsandServicesB2Btransactions.ppt

Scope of indemnity clauses They can enable a contracting party to: Avoid liability for their own negligence Get around rules concerning remoteness or need to mitigate their loss Transfer liability alltogether to someone else Samways v. WorkCoverQueensland and Ors [2010] QSC 127 “The Hirer (De Luca)shall fully and completely indemnify the Contractor (Lynsha) in respect of all claims by any person or party whatsoever for injury to any person or persons and/or property caused by or in connection with or arising out of the use of the plant and in respect of all costs and charges in connection therewith whether arising under statute or common law.” Samways v. WorkCover cont 2 Mr. Samways was injured when he walked into the raised bucket of a stationary bobcat on a building site. The bobcat was owned by Lynsha, which had hired it to De Luca Properties, who were in control of the site. Mr. Samways worked for a subcontractor and sued in negligence and for breach of statutory duty against his employer, De Luca and Lynsha. Court found 10% sub contractor, De Luca 30% and Lynsha 60% to be reduced by 20% for contributory negligence of Samways. Clause found wide enough to cover their own negligence and Lynsha could recover. Samways v. WorkCover cont 3 See useful summary of principles of construction of indemnity clauses. To be construed strictly Without statutory authority, a court has no mandate to rewrite clause Should be construed in contractual context which allocates risks between parties Give effect to ordinary meaning of language If insurance required, may be taken into account, also absence of such a provision. International contracts Harmonisation desirable International body of jurisprudence building Express provisions agreed by the parties Treaties-Vienna Convention application Incoterms Dispute resolution Unidroit principles International Contracts When does SOG (Vienna Convention) Act apply? Direct application by virtue of Article 1 Conflict of laws rules-if prope