“It is settled law that the question whether an exception clause or a limitation of liability clause in a contract is applicable where there is a fundamental breach of the contract is one of the true construction of the contract. The House of Lords had occasion to make an extensive review of the leading authorities on the matter in Suisse Altlantique D’Armement Maritime S.A. v. Rotterdamsche Kolen Generale (1967)1 A.C. 361. We are particularly attracted by the highlight of Lord Upjuhn’s speech in that case where he stated at pages 421 – 422: “There was much discussion during the argument upon the phrases “fundamental breach” and “breach of a fundamental term” and I think it is true that in some of the cases these terms have been used interchangeably; but in fact they are quite different. I believe that all of your Lordships are agreed and, indeed, it has not seriously been disputed before us that there is no magic in the words “fundamental breach”; this expression is no more than a convenient shorthand expression for saying that a particular breach or breaches of contract by one party is or are such as to go the root of the contract which entitles the other party to treat such breach or breaches as a repudiation of the whole contract.” Per BELLO, J.S.C. in NIGER INSURANCE CO. LTD. V. ABED BROTHERS LTD (1976-LCER-1097-SC) at P. 9, Paras. A-B.
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