Are "To the maximum extent as permissible under law" exemption clauses too uncertain and litigation-prone?

Question

This clause is from a commercial landlord's offer in England. Isn't it too disputable and vague?? Firstly, it wrongly assumes that the "law" on exclusion clauses is settled and certain. Perhaps the case law is uncertain. Or there may not even be law.

Secondly, it wrongly assumes that "the maximum extent" can be handily identified. Perhaps Landlord and I disagree on what "the maximum extent" is.

Thirdly, the "law" can change. Then what's "the maximum extent" or "law"?

I communicated these arguments to the Leasing Manager, but she refused to amend this clause. She replied that this clause is part of Landlord's standard form contract, and Landlord almost never amends it for small business owners like me.

Is this reasonable? Or must I just push harder? I'm bewildered because I don't want to antagonize Landlord by pushing harder, and I got little bargaining power.

I plan to pay a solicitor to review the contract, but the solicitor advised me informally to ask the landlord myself to define the extent of the exclusion clause upfront. Why? If he does it, he'll charge me and he'll be saying the same thing. He advised me to accomplish as much as I can myself before officially retaining him.

1. To the maximum extent as permissible under law, the Landlord shall not be liable to the Tenant, its employees, licensees or invitees in respect of any claim, loss (including but not limited to loss of profits), damage or injury to person or property sustained by the Tenant or any such other person caused by or through or in any way owing to:

(i) the adequacy or inadequacy of or any defect in or breakdown, failure, malfunction or suspension of the lifts, escalators, fire services equipment, security, airconditioning system or other facilities of the Building or the electricity, gas or water supply or other building services provided to the Premises, the Building or the Development; or

(ii) typhoon or other adverse weather condition or fire or the overflow or leakage or influx of water including rain, storm or sea water or water of any other nature or other substances from or into anywhere within the Building or the Premises or the escape of fumes, smoke, fire or to activity of termites, cockroaches, pests, rats, mice or other vermin in the Building or any part(s) thereof; or

(iii) the adequacy or inadequacy or otherwise of or any defect in any of the management services (including security) rendered by the Landlord and/or the Building Manager or the failure to render the same or the suspension or interruption thereof for whatever reason; or

(iv) the closure of shopping mall of the Building or any part thereof by reason of any war, hostilities (whether war be declared or not), invasion, act of foreign enemies, revolution, insurrection, or military or usurped power, order or direction of any Authority, riot, commotion, social unrest, strikes, industrial action, lock outs or disorder, or threats of terrorism, or pandemic, or any other contingencies which, in the opinion of the Landlord, may cause or threaten to cause damage or injury to the Premises or the Building or any part thereof or injury or death of person;

(v) the letting or leasing of any part of the Building and the Development (except the Premises) to any other party for any purpose whatsoever or any acts, omissions, neglect or default of any other tenants, licensees or occupiers of or of any accident in the Building and the Development.

Answer 1

No, such clauses are precise and common.

The landlord wants to say: “we're not liable for anything”. Unfortunately for them, they can't say that because the law might still recognize some liability.

So this construction achieves the next best thing: to the maximum extent possible, they will not be liable.

What does this mean for you? If you want to sue them because you think they were liable for something, you won't be able to do that successfully – unless you can point to a liability they cannot disclaim. Yes, this might not always be entirely clear but that's why there are courts.

On to your concrete objections:

Firstly, it wrongly assumes that the "law" on exclusion clauses is settled and certain. Perhaps the case law is uncertain. Or there may not even be law.

Which is why this construction says: we don't know where precisely the maximum is, but whatever the maximum is: we want it.

Secondly, it wrongly assumes that "the maximum extent" can be handily identified. Perhaps Landlord and I disagree on what "the maximum extent" is.

Either you can convince the landlord that they are liable and can settle this out of court. Or you go to court. Then, your opinion doesn't matter, only the court's judgement.

Thirdly, the "law" can change. Then what's "the maximum extent" or "law"?

This construction avoids this problem because it does not fix a certain list of liabilities that are included or excluded. Instead, it will disclaim maximum liability at any relevant point in time, which will likely be the time of the event giving rise to liability. If new laws are passed, they won't generally apply retroactively. However, new case law could update the interpretation of existing laws.

What can you do? This is a business negotiation. You want that the landlord fulfils their duties, and they don't want to be on the hook if something bad happens. In particular, they don't want to be forced to pay for any missed profits or such. Maybe the clauses could be modified to ask for reasonable effort on the part of the landlord to mitigate certain events, in particular with regards to security.

But in reality: you will have to get insurance to cover the cases you are concerned about. And some risks are just business risks.