exemption clause incorporated

Our developer has embedded the well crafted exemption clause in the lenghtly contract that shield them from liabilities of non performance of contract and non paying of guarantee rental return. 

Countering the "Clear Language" Defense
Developers often argue that exemption clauses are enforceable because they are clearly written and unambiguous. This defense can be countered by demonstrating that clarity of language is not sufficient if the clause was not properly incorporated, is onerous and did not receive adequate notice, or violates statutory protections.

The focus should be on the overall fairness of the clause and the circumstances of its incorporation rather than merely its linguistic clarity. Evidence might include the context in which the clause was presented, the emphasis given to positive aspects of the investment versus limitations, and the reasonable expectations created by the marketing process.

Countering the "Sophisticated Investor" Defense

Developers may argue that sophisticated investors should be bound by exemption clauses because they have the knowledge and resources to understand and negotiate contract terms. This defense can be countered by demonstrating that even sophisticated investors may reasonably rely on representations from those with superior knowledge, that the exemption clauses contradict the fundamental promises made, or that the investor's sophistication was in areas other than legal contract analysis.

The law recognizes that sophistication in one area (such as business or finance) does not necessarily translate to sophistication in legal matters. Moreover, the developer's superior knowledge of their own corporate structure and financial arrangements creates an information asymmetry that justifies protection even for sophisticated investors.

Countering the "Standard Industry Practice" Defense

Developers may argue that their exemption clauses reflect standard industry practice and should therefore be enforceable. This defense can be countered by demonstrating that the clauses go beyond industry standards, that industry practice itself may be unfair or unconscionable, or that the specific circumstances of the case justify different treatment.

Evidence might include expert testimony about actual industry practices, comparison with exemption clauses used by other developers, and analysis of whether the clauses are proportionate to the risks involved.

Countering the "Commercial Risk" Defense

Developers may argue that exemption clauses are necessary to allocate commercial risks appropriately and that investors should bear the risk of investment failure. This defense can be countered by demonstrating that the guaranteed return promise was specifically designed to eliminate or minimize risk, that the exemption clauses create an unfair allocation of risk that contradicts the marketing representations, or that the developer has retained control over the factors that determine success or failure.

The key is to show that the exemption clauses create a risk allocation that is inconsistent with the reasonable expectations created by the marketing process and that allows the developer to benefit from investor funds while avoiding responsibility for performance.