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Financial services agreements commonly include ‘entire agreement’ clauses (EACs, designed to limit obligations to those expressed in the written contract) and non-reliance clauses (NRCs, designed to prevent liability for misrepresentations made in the course of negotiations). The chapter discusses the basis on which each clause has come to be recognized as effective; the limits on their operation; whether they are conclusive; and, crucially, the extent to which they are subject to legislation requiring them to be reasonable. This has been controversial in respect of NRCs in particular, some judges seeming to suggest that an NRC will always prevent liability for misrepresentation arising thereby sidestepping the Misrepresentation Act 1967, s 3. The English Court of Appeal has recently confirmed that if there has been reliance on what was reasonably understood to be a representation, the NRC excludes liability by 're-writing history' and must be reasonable. Nonetheless, NRCs are often held to be reasonable.

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Editor: Sandra Booysen
Monograph Book