‘Since classical contract law saw contractual liability as something created by operation of the will of the parties, rather than as liability imposed by law, it was inevitable that the classical law should accept the power of the parties to modify as they saw fit the nature of the liability created [by use of exemption clauses]…Such exemption clauses are not necessarily bad and the classical law was not excessively naïve in allowing parties to abdicate all responsibility for their promises. The classical law assumed (in a way that today might be frequently challenged) that all parties to contractual negotiations would bargain freely, would be best placed to know their own interests, and would agree to such terms only if some, not necessarily immediately apparent, benefit would accrue from so doing…Nevertheless, it is generally accepted today that there are situations in which exemption clauses are not freely negotiated, at which point the law may seek to interfere.’


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R. Merkin and S. Saintier, Poole’s Textbook on Contract Law (2019, OUP, 14th edn.), 251-2.


With reference to relevant case law and other materials, explain and critically analyse the above quotation and the area of law to which it relates.

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