Margaret Mazza


Exculpatory clauses in leases are used in order to free the lessor from liability for his future acts of negligence. For the purpose of this article we will assume that there was a legal duty resting upon the party asserting the clause as a defense. The validity of such a provision then requires a choice between two conflicting policies: (1) a person should be liable for the negligent breach of his duty; (2) a person should have the right to contract freely. The common law developed the rights and duties of the parties in certain relations and determined that damages be awarded for the negligent breach of those duties. The basic relations so determined are those of the common-carrier and passenger, bailor and bailee, employer and employee, innkeeper and guest, and landlord and tenant. Common law tort liability applies to these situations, except as modified by the element of contract. What happens to the common law liability when two parties agree that certain rights are to be relinquished and duties escaped by the contracting parties?