Contracts of sale, lease, loan, labour, assignment and
other types of contracts are the tools whereby different
transactions are effected whether between individuals inter se
or among groups of natural or juristic persons. The contents of
contracts do not rank equally in regard to their legal value.
Exemption and limitation terms are of the most important
categories because they delimit the boundaries of the contract.
Whereas exemption terms enable a party to a contract to
exclude a liability which will otherwise be his, limitation terms
limit the liability of a party either by placing a ceiling for
compensation, or by specifying a time limit for bringing an
action. They are invariably used in standard form contracts
particularly in the type known as contracts of adhesion. Now,
the device of the standard form is a prevalent phenomenon of
the modern society. It is used in transactions usually associated
with the needs of the daily life such as electricity, water,
communication...etc. The providers of these services have
usually a monopoly on them. Such monopoly is apt to create
inequality of bargaining powers and to put consumers in a
weaker position. The law is to step in to restore the contractual
equilibrium and to protect consumers. This is achieved by
controlling the use of exemption and limitation terms in
contracts via statutory or judicial arrangements. The legal
intervention, whether statutory or judicial, is backed by
economic and social dimensions. As far as the economic and
social factors are variable, the need for studying exemption
and limitation terms is continually renewed not only in
comparative systems, but also within the same legal system.
The vital importance of exemption and limitation terms
at the legal as well as the economic and social levels always
triggers studies. This explains why much ink is spilled in
studying exemption and limitation clauses in most
jurisdictions. However, there is paucity of literature in Sudan
particularly at the academic level. The only available elaborate VI
study was made by the late Dr. Zaki Mustafa in 1967. Thence,
to study this virgin area of Sudan law is to assume a burden at
once challenging and pioneering.
The fact that there is paucity of local literature elevates
the need for studying exemption and limitation clauses in
comparative jurisdictions. A comparative handling has a
twofold value: As a reference for explaining local legal rules
and as a pointer toward questions yet unsolved in Sudan. It is a
common goal of all legal systems to guarantee the freedom of
the parties to agree on their own terms on one hand, and to
guard against abusive use of contract terms on the other. The
mechanism for striking a balance between these two
conflicting demands differs from one system to another. It is
either legislative or judicial. The degree of the legal
interference is inversely proportionate to the freedom of the
parties i.e. less interference means more freedom and vice
versa.
The problem intended to be tackled in this thesis is
created by the fact that Sudan courts used to follow English
law from the beginning of the Condominium Period in 1898
up to 1974. The Contracts Act 1974, due to some local factors,
had deviated considerably from the pre-existing position which
was based on English law. The relative ''illiteracy'' and
considerations of business ''unawareness'' were the main
factors which prompted the Sudanese legislature to approach
the question of exemption and limitation clauses in a different
way. The rationale of that approach might have been selfevident
at the time the Contracts Act 1974 coming into force.
However, the same provisions of the Contracts Act 1974
dealing with exemption and limitation clauses have been reenacted
and adopted almost verbatim in the present Civil
Transactions Act 1984. Now, more than three decades have
elapsed since 1974.The question: What provisions currently
govern exemption and limitation terms under Sudan law? How
had Sudan courts applied them? How to deal with matters of
relatively modern nature such as "standardization" of
exemption and limitation clauses and ''prevention of unfair
contract terms'' in ''consumer contracts'' or in other types of
contracts? How to make use of comparative jurisprudence as a
reference for explaining local legal rules and as a pointer VII
toward questions yet unsolved in Sudan? Is there a need for
reform?
These questions sum-up the exact problem posed in this thesis,
and the answers thereof constitute its main theme.
The methodology followed in this thesis is one of
exposition, comparison, analysis and conclusion. The present
statement of the law as represented by the Civil Transactions
Act 1984 is reviewed, analyzed and then compared: Vertically
with English law and American law, and horizontally with the
position of Sudan law before 1974 and the period 1974- 1984.
This creates for grounds for comparison. Notably, the English
system has been specifically chosen in this thesis because it is
one of the important historical sources of Sudan law. It was
applied for more than half a century. The American system, on
the other hand, is chosen for its closer similarities to the
Sudanese system, especially in regard to the method of
preventing the use of abusive exemption and limitation
clauses. Both systems avail the courts with wide discretionary
powers to police the use of abusive clauses.