I am struggling to understand the difference between these two, let's use a simple example of a dry clean store. Exculpatory;- The dry clean store will draft this saying that they should be released from liability to a customer for burning clothes even if its by negligence. Hold-harmless;- The customer will draft this saying that he will keep the dry-clean store from any financial liability arising from damage to his clothes. So the party signing an exculpatory agreement drafted by another party is signing a hold harmless agreement? Is the distinction therefore just who is writing the contract?
I think the core reading description simplifies what is actually a complex legal situation, and there are probably many types of hold harmless and exculpatory in reality. If it comes up in SA5 I feel sure that it will be a regurgitation of the core reading definitions. My feel for it is that the hold harmless is where one party holds the other blameless if they damage something while performing some work. (The dry cleaning owner exempt the repair man from any damage that he causes to the dry cleaning business while fixing the machines). However I think that negligence always breaches these contracts - you can always sue if negligent. Exculpatory is where you exempt someone for damage that you might cause while performing a task (the customer exempts the owner from blame if he kills himself while operating the machines).
