At first glance, therefore, the clause was such that it excluded liability and there was no evidence to suggest otherwise. The fact that the clause had contractual effect (which prevents the tenant from claiming that insurance had been given because the tenant had agreed that nothing had been said by the lessor should be considered a representation) made no difference. Section 3 remained in force. The adequacy assessment was therefore applied. The owner had argued that the clause was reasonable on the basis that the parties were legally represented, through the same bargaining power, and that the parties did not enter into the owner`s standard terms. The trial judge accepted these facts, but did not find them conclusive. In deciding that the clause was inappropriate, the procedural judge recognized the importance of pre-contractual investigations in the field of mediation; If the owner were allowed to exclude liability for these submissions, the important function of responding to pre-contractual requests would have no value. The Court of Appeal upheld its decision . .


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