Chapter 93A liability not barred by contractual provision

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A limitation of liability provision in a commercial lease did not preclude the landlord from being held liable for a willful and knowing violation of G.L.c. 93A, the Supreme Judicial Court has found.

“The primary issue presented in this case is the enforceability of contractual provisions limiting liability for violations of G.L.c. 93A, section11, which makes ‘unfair or deceptive act[s] or practice[s]’ between businesses unlawful,” Justice Scott L. Kafker wrote for the unanimous court.

The SJC concluded that limitation of liability provisions would not be enforced to protect defendants “who willfully or knowingly engage in the unfair or deceptive conduct prohibited by the statute.”

“Because multiple damages under c. 93A ‘serve the twin “goals of punishment and deterrence,”‘ … enforcement of a limitation of liability provision that would allow a defendant in a c. 93A, section11, action to immunize itself in advance from liability for unfair or deceptive conduct that is done willfully or knowingly would do violence to the public policy protected by the statute,” Kafker wrote.

Such willful and knowing misconduct was not entitled to contractual protection from Chapter 93A, section11, liability, the SJC determined.

The 46-page decision is H1 Lincoln, Inc. v. South Washington Street, LLC, et al., Lawyers Weekly No. 10-006-22.