libility limit clauses

While reading a court case ( Docket P0190110329 ) I came across this;
The judge observed;
As a final note and although it does not affect my decision, I would like to comment upon the argument based on the exclusionary clause in the agreement between the Plaintiffs and Mr. Brown limiting the inspector’s liability to the fee paid for Inspection Services and releasing the inspector from any additional liability. The evidence shows that this agreement was signed after the inspection was completed and when the report was being prepared and given by Mr. Brown. There is no evidence that it was explained to the Plaintiff that the Defendant’s liability was limited by the terms of the contract. The law in this regard is set forth in Law of Contracts in Canada Second Edition G.H.L. Fridman, page 537 in this manner,

“ The applicability of an exclusion or limitation clause can be challenged on the ground that the party seeking its protection did not bring its existence and inclusion in the contract sufficiently to the notice of the other party at the time of, or prior to the making of the contract, with the result that the latter cannot be taken to have assented to the clause. If this is so, then the clause will not be effectuated. Unless, the party has taken reasonable steps to draw the other party’s attention to the contents, or some particular contents, of the proposed contract, the consent of the offeree to the offer will not be taken to extend as far as the term or terms of which the offeree is ignorant.”

The forgoing did not affect the final decision to dismiss the case against the inspector because inspector met the SOP of his Association. I’m assuming that the judge was offering a warning that the limit clause must be brought to the attention of the customer before doing the work.

Another case;
Gullackson told Brennan that the roof would last another 25 years.
The judge stated;
The detriment Brennan experienced in relying on Gullackson’s negligent verbal misrepresentation concerning the cedar shingles of the house she had made an offer to buy was that she, relying thereon, purchased the house under the belief its shingles would last another 25 years when in fact they needed replacement within the year. The consequence of the detriment was an $8718.36 expenditure associated with the removal of the old cedar shingles and the proper installation of new fiberglass shingles in replacement thereof. The person who supplied the new shingles described them in testimony as “fairly expensive shingles”. In his invoice he identified them as “a 30Y Harmony 2 fibreglass shingle”. I conclude therefrom the new shingles were classified as having an expected lifespan of 30 years. Brennan’s installation of the new fiberglass shingles put her in a better position than she would have been in had Gullackson’s negligent misrepresentation been accurate in fact. At least in theory her remedial action increased the life expectancy of the roof’s shingles from 25 to 30 years. In that context I conclude it would be unjust to grant her full recovery of the $8718.35 claim associated with new shingle installation. I reduce the claim by a ratio of 25 to 30 and hold the defendant Gullackson liable to the plaintiff Brennan for damages in the amount of $7265.29.

This is the very reason why I email a copy of the PIA to my client as soon as the inspection is booked, with the instructions for them to read it in it’s entirety, have their attorney read it if they desire, email back their acceptance of the terms of the PIA, and that they will be required to sign a hard copy in my presence prior to the beginning of the inspection. If they are out of state and cannot attend, I require a notorized copy emailed back, and the original notorized hardcopy mailed and received (overnight mail). I will perform the inspection once the email copy is received, but will not release the report until the hard copy is received. Only once have I had anyone complain that this was not necessary. I explained the PIA is a legal instrument, and if they didn’t want to comply with my terms, that was their right, but they needed to keep calling other inspectors. They kept calling. Their loss, not mine!

Thanks Vern , on advice from a lawyer I do not say one word about the home before the contract is signed .
Also On advice from the lawyer I raised my limitation to $1,000;00 , he stated that limiting to the fee can possibility cause grief and his recommendation was to not even mention fee .
I had the fee before .

US Courts are starting to weigh several things often included in our inspection agreements. These rance from typeset and sizing to the sophistication of the client.

Limiting your liability to the cost of the inspection can be deemed opressive, though not in all instances.

I give them a choice. A limited liability inspection (cost of inspection) for the fee stated in the contract. OR a no limit of liability inspection at the additional cost of $1000. The contract is e-mailed to them as soon as the inspection is booked along with other instructions and notice that I will be bringing original hard copies to the inspection for signature prior to the start of the inspection.

So far nobody has wanted the no limit of liability inspection. Oh well…:roll:

I do a no-limit liability inspection for $2890 and require 15 days for a report, or the limited liability inspection starting at $315 with one day to do the report. People prefer the limited liability at the rate of 100%, so far. They initial their refusal for the unlimited liability on every contract and they are emailed an advance copy the same day they book their inspection for advance reading. It will be impossible for anyone to claim that they were not informed of the limited liability of their agreement when they have initialed next to their refusal for an unlimited liability option.

And, of course, using some of the wording from the NACHI agreement…anyone who hires me is understanding and agreeing to pay me ONLY for my opinion of the condition of the home…not for a report on the actual condition of the home. There is a big difference since my opinion was based upon my own observation at the time of the inspection, under the conditions that I was inspecting, with the information that was available to me at that time. Read the NACHI contract closely. It’s an amazing document.