Waiver of Consequential Damages

Waivers of consequential damages appears to be a fairly murky area of Texas law that is controlled by case law.

Texas Courts will also enforce a contract clause waiving and/or limiting consequential or special damages. This type of language is very helpful in limiting the damages being asserted by a borrower in any sort of lender liability type of claim or defense. See Tex. Bus. & Com. Code Section 2.719(a)(1) entitled “Contractual Modification or Limitation of Remedy”; See Emerson Elec. Co. v. American Permanent Ware Co., 201 S.W.3d 301 (Tex. App-Dallas 2006, no writ) (holding if the parties intend the term to describe the sole remedy under the contract, this must be clearly expressed); SAVA, d.d. v. Advanced Polmer Sci., Inc., 128 S.W.3d, 317 ((Tex. App.-Dallas 2004, no pet.) (If the parties agree to a contractual remedy, that remedy will be enforced unless it is illegal or against public policy); See also Global Octanes, L.P. v. BP Expl. & Oil Inc., 154 F.3d 522-523 (5th Cir. 1998) (Section 2.719(a)(2) provides that any remedy is not meant to be exclusive unless agreed upon by the parties).