In the context of contractual liability for damages, it is generally the case that the parties have autonomy to expand or limit such liability under certain conditions – for example, the parties may agree on a maximum amount of damages – which is referred to as modifications of contractual liability for damages. In this regard, two questions arise in particular: how the parties may modify liability and to what extent, that is, how far their freedom extends, and when a court or the legal system intervenes in their arrangement. The master’s thesis first presents the general framework of contractual liability for damages, and then examines in greater detail the possibilities for its modification by the contracting parties and the limits of their autonomy. In doing so, it focuses in particular on the exclusion or limitation of the amount of damages, the stipulation of contractual penalties as modifications of liability, and on the factors that affect party autonomy in such modifications, for example the degree of fault and the manner in which a contractual clause is incorporated into the contract. Although the Slovenian legal framework is taken as the starting point, the master’s thesis also discusses the legal regimes of Germany and England, as well as the regime under the UNIDROIT Principles, thereby enabling a broader understanding of such modifications. The analysis shows that party autonomy in modifying contractual liability for damages depends on several factors, in particular the manner in which liability is modified, how the modification is drafted in the contract and how it came into being or the degree of individual negotiation.
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