You're three pages into a supplier contract when you hit a clause about excluding 'indirect or consequential losses'. It sounds like standard boilerplate, so you skim past. Six months later, when that supplier's mistake costs you a major client, you discover the clause means you can't recover those losses at all. That stung feeling is avoidable if you know what you're looking at.
These clauses aren't just legal decoration. They fundamentally change what you can claim when someone breaks their promise to you. We see businesses unknowingly accept far more risk than they intended because the language feels technical and abstract – until it isn't.
Our commercial law solicitors work with clients across the UK to decode this jargon before you sign, so you're protected when things don't go to plan.
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What's the difference between direct and indirect loss?
When someone breaches a contract, some losses are obvious and flow naturally from what went wrong. Others only happen because of your circumstances. English law draws a line between these two types, and that line determines what you can recover.
- Direct loss is what you'd naturally expect to happen when someone breaks the contract. It flows straight from the breach in the normal course of things. If a supplier delivers faulty equipment, the cost of repair or replacement is typically direct loss – anyone would expect that consequence.
- Indirect or consequential loss is what happens because of your specific situation. These are losses that both parties contemplated (or reasonably should have) when you made the deal, but that don't arise naturally from the breach itself. Think of the production line that stops because of that faulty equipment, and then the customer contract you lose because you couldn’t fulfil orders. Lawyers call this the 'second limb' of remoteness. These aren't everyday consequences – they're knock-on effects that depend on your plans, circumstances or purposes.
Here's what catches people out: 'consequential loss' is usually read as this second type of loss. But if you want the term to mean something different – broader, narrower, or tailored to your industry – you need to spell it out in the contract. Some sectors use bespoke definitions that go way beyond the standard legal meaning, and courts will apply those definitions when they're clearly stated.
Why this matters in practice
Arguments over whether a loss is 'direct' or 'consequential' are fact-sensitive, contested, and expensive to resolve. They often end up in litigation precisely because the contract drafting was vague, or the parties never discussed unusual risks upfront. The clearer your clause and the earlier you flag potential losses, the better protected you'll be. Boilerplate language copied from another contract won't save you when your circumstances are different.
A real-world example
Imagine A buys a car from B and immediately sets off for Folkestone. The car breaks down halfway there.
The cost of fixing the car is a direct loss. It's the natural result of selling a faulty vehicle, and anyone would expect it.
A then tries to claim for a lost holiday because they missed their Eurotunnel booking. Here's the problem: if B didn't know about the holiday when they sold the car, that loss is probably too remote to recover. It doesn't flow naturally from selling a car – it flows from A's specific plans. But if A had mentioned the booking at the point of sale, and it was reasonable for both parties to have contemplated that loss, it might be recoverable. Context and communication at the time of contracting make all the difference.
Where you'll find these clauses
Look in the 'Liability' or 'Exclusions' section of pretty much any commercial contract. Many standard clauses exclude 'indirect or consequential' loss altogether. It's also common to see specific types of loss excluded – like loss of profit, revenue, or savings – and critically, these are often excluded whether they're direct or indirect. Courts take this wording at face value, so if you want losses off the table, you need to name them explicitly.
There are also legal limits you can't contract around. You cannot exclude or restrict liability for death or personal injury caused by negligence, full stop. For other types of loss or damage, any exclusion or limitation has to pass the reasonableness test under the Unfair Contract Terms Act 1977 (UCTA) if you’re dealing with another business. If a clause fails that test, it's unenforceable.
How to handle these clauses properly
You need to start early and be specific. Vague language and last-minute negotiations lead to gaps in protection that only become obvious when something goes wrong.
- Map out the risks upfront. List the foreseeable losses on both sides and discuss them during negotiations. It's a simple step that surfaces hidden assumptions and prevents nasty surprises later. If you're the buyer and losing this contract would mean penalty payments to your own customer, say so. If you're the supplier and delays could trigger liquidated damages on another project, flag it.
- Get specific with your drafting. If you're looking at a broadly drawn exclusion clause, push for a redraft. First, define 'Consequential Loss' if you're using a non-standard meaning. Second, list exactly what's excluded – for example, 'loss of profit, revenue or savings, whether direct or indirect'. The specificity forces both sides to confront what they're agreeing to.
- Don't forget wasted expenditure. If you want to exclude money you've already spent on a project that's now useless because of the breach, say so explicitly. Courts treat wasted expenditure as distinct from loss of profit or revenue, so general wording might not capture it. We've seen clients assume they were protected, only to discover that what they'd sunk into a failed project wasn't covered by the exclusion they'd negotiated.
- Balance the deal. Exclusions are only one part of risk allocation. You can also adjust the contract price, require insurance, allocate control obligations more clearly, and build in service levels or performance bonds that reduce the actual likelihood of things going wrong in the first place. Think about the risk holistically, not just the wording of one clause.
- Use a liability cap – with carve-outs. Pair your exclusions with a financial ceiling on total liability. This gives both sides certainty and makes the contract more commercially balanced. But carve out the essentials: death or personal injury caused by negligence, fraud, wilful misconduct, and any other risks where a cap would be unreasonable or unenforceable. Always keep the UCTA reasonableness test in mind. A cap that's absurdly low relative to the contract value or the foreseeable harm may not survive a challenge in court.
- Check your insurance cover. Make sure your insurance cover is enough to meet any liability provisions you have agreed. Make sure the other party also has enough cover; in case you’re the one making a contract claim against them.
Key takeaways
Just because you've included an exclusion clause doesn't mean you escape liability for everything. If a loss is direct, an exclusion of 'indirect or consequential' losses won't protect you. If you've excluded specific types of loss (like loss of profit, loss of revenue, wasted expenditure, etc.), every word in that drafting will matter.
And remember whether you can recover a loss ultimately comes down to remoteness. Were the losses reasonably in both parties' contemplation when you made the contract? If not – and you didn't communicate the unusual circumstances – you're unlikely to recover them, exclusion clause or not.
Get your contracts right from the start
Clauses about indirect and consequential loss can shift your risk exposure dramatically, often in ways that aren't obvious until a dispute lands on your desk. If you're negotiating new terms, renegotiating an existing agreement, or just want a second pair of eyes on your liability provisions, our commercial law solicitors can help you strike the right balance. We focus on practical protection that fits how you do business, without the overkill.
