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对于免责条款,法字的第一个问题应该是:它具有合意性吗?第二个问题应该是:它合理吗? 提出合意性问题并不是偶然的。人们常说合同条款是协商的结果,却很少注意到象免责条款这样的条款往往是由格式合同的印制者强加于对方的,对方想订合同就别无选择。拿运输合同来说,早期这种条款印在车(船)票上,其效果是,旅客要么不出门,要么就不得不自已承担旅行风险,他甚至都不能选择支付较高的费用而由运输公司承担这种风险。如果他想换个订约人,他很快会发现,后者的车(船)票印着同样的条款。这个问题直到旅行保险被引入后才解决。再以邮政服务为例,按现行规定,丢失挂号信或错译电报,邮局仅须承担退回邮费之责。很难设想因此而蒙受巨大经济损失或其他损失的客户会心甘情愿接受这种处理结果。
For the exemption clause, the first question of a legal word should be: Is it desirability? The second question should be: is it reasonable? It is not accidental to ask a question of desirability. It is often said that the terms of a contract are the result of negotiations, but seldom noticed that clauses like clauses of exemption are often imposed on each other by the imprinter of the format contract, and the other party has no choice but to make a contract. In the case of a contract of carriage, the earlier clause was printed on a car (ship) ticket, the effect of which is that the passenger either has to travel outside or has to bear the risk of traveling on his own, and he can not even choose to pay a higher fee for carriage The company takes this risk. If he wants to change a contractor, he will soon find that the latter’s car (boat) ticket carries the same terms. This problem is not solved until travel insurance is introduced. To postal services, for example, according to the existing provisions, lost registered mail or mis-translated telegrams, post offices only bear the responsibility to return postage. It is hard to imagine that customers who suffer huge economic losses or other losses will therefore be willing to accept such treatment.