Key Takeaways:
- Customers often approach limitation of liability purely from a fault perspective, while vendors focus on proportionality and commercial sustainability.
- The Primrose v. Western Union case illustrates that liability caps are rooted in aligning risk with value, not solely in assigning blame.
- Supercaps can offer a practical middle ground, providing higher protection for critical breaches without exposing vendors to unlimited risk.
Limitation of liability clauses are often debated as if they’re purely about fault. But in reality, these clauses are just as much about proportionality as they are about responsibility. This article looks at the customer’s fault-based arguments, the vendor’s proportionality-based arguments, and how supercaps can bridge the gap, using the Primrose v. Western Union case as a starting point.
Fault vs. Proportionality in SaaS Negotiations
In most SaaS negotiations, the discussion on limitation of liability starts and often ends with the question of fault. The customer’s position is straightforward: if the vendor causes a breach (which is more likely than the customer because the vendor bears the lion’s share of obligations), the vendor should bear the full consequences. On its face, the fault-based logic seems difficult to dispute.
However, limitation of liability has never been solely about fault. Ask any vendor and they’ll tell you that, at its core, it’s about proportionality. The clause should help ensure that the level of financial exposure is reasonably proportionate to the value the vendor receives from the contract. This principle is not new; it was affirmed by the US Supreme Court in 1894 in Primrose v. Western Union.
A 19th Century Lesson for Modern Tech Deals
In Primrose vs. Western Union, Frank Primrose, a wool merchant, sent a coded telegram to his agent. Western Union made two errors in transmission that changed the meaning from “I have bought 500,000 pounds of wool” to “Buy 500,000 pounds of wool”. The agent did exactly that, and the mistake cost Primrose the equivalent of hundreds of thousands of dollars today.
He sued Western Union for the error, but Western Union’s terms contained a clause which limited liability for transmission errors to the price of sending the message which was $1.15. The Supreme Court upheld the clause, reasoning that the limitation reasonably aligned the parties’ risk with the value of the transaction. The justification was that the limitation of liability clause worked as intended, by avoiding catastrophic liability for a low-value transaction.
How the Tension Plays Out in Today’s Contracts
This same tension plays out today in SaaS agreements, especially when dealing with breaches of confidentiality or data protection obligations. Customers see these as clear cases of fault: the vendor was in control, the vendor failed, and the vendor should bear the full amount for the loss caused.
Vendors, by contrast, emphasize proportionality. Even if the breach is harmful, unlimited liability can be commercially unsustainable, especially if a single incident impacts multiple customers.
These are two legitimate perspectives, but they rest on fundamentally different principles. The customer emphasizes responsibility whilst the vendor focuses on proportionality. The challenge in negotiations is bridging the gap when deciding whether certain obligations sit outside the liability cap entirely.
Supercaps as a Practical Middle Ground
One common resolution is the use of enhanced caps or supercaps which apply higher limits to specific high-risk breaches, such as confidentiality or data protection, without removing the cap entirely. For example, a standard 12-month fee cap might be increased to two or three times that amount for these higher-risk breaches.
While not a perfect solution, supercaps can strike a workable balance: the customer receives greater financial protection for serious breaches while the vendor avoids the open-ended exposure of uncapped liability.
When drafting supercaps, however, there are several considerations to keep in mind. The supercap should be tied to clearly identified obligations, ideally by referencing the specific sections of the agreement that trigger it (for example, confidentiality, data protection, or IP misuse). For smaller or lower-value deals, linking the supercap to a multiple of fees paid can maintain proportion between contract value and risk. But as deal sizes increase, that same multiple may produce liability levels that are commercially unsustainable for a vendor; in those cases, a fixed dollar amount or a hybrid approach (the lower of a high fixed amount or a fee multiple) may be more appropriate. It is also worth recognizing that some types of liability, particularly IP infringement and confidentiality breaches, can give rise to losses that are largely unrelated to the contract value. In those cases, a higher fixed dollar cap may be more appropriate than a fee-based multiple. Finally, whichever approach is taken, the supercap should be checked against the vendor’s insurance coverage to ensure that the liability assumed in the contract remains insurable.
The Primrose decision is a reminder that limitation of liability has always been about more than assigning blame. It’s about balancing risk in a way to keep the deal commercially viable for both parties. In modern tech agreements, treating proportionality as equal in importance to fault is essential to reaching practical, mutually acceptable outcomes in liability negotiations.
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