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Do signed waivers really hold any water in court?
Most average Joe's are used to signing off on waivers and contracts they never read. Most of these waivers are basically full of legalese freeing the company of any liability for it's product or service. Do these waivers really hold any water in court, or does common sense always take precedence.
For example , say your sky diving instructor was drunk and injures you in a bad landing. Is he and his company completely free of any wrongdoing because of the 12 page waiver you signed before jumping?
On a similar note, why don't most businesses add these limitation of liability clauses to their contracts? If a prospect feels they have a legal right to your hard earned money because of a common mistake, then just don't sign that prospect on. I run my own small software service company and just plainly refuse my services to any prospect who questions why I have all 'Limitation of liability' clauses in my contracts.
Jonathan Sachs writes
Basically, yes. If Joe is a legally competent adult and he signs an agreement, he is presumed to have understood and consented to it. To overcome the presumption he would have to prove that he was induced to consent by fraud, or that the transaction was structured so that he could not reasonably have understood and consented, or something similar.
The law makes this strong presumption to preserve the reliability of written agreements. If anyone could reasonably try to overturn a written agreement by proving an imponderable -- his or her state of mind at the time of signing -- no agreement would mean much of anything.
There are certain exceptions to this. Courts sometimes find that extremely one-sided agreements are unconscionable, and set them aside. (This generally involves some circumstances beyond the terms of the agreement itself, such as lack of a reasonable alternative.) Consumer protection laws often qualify the concept of consent; for example, by requiring a "cooling off period" during which a consumer may withdraw from an agreement without penalty.
Stuart Bronstein writes
Generally the waivers do hold up. However there is a general proposition that you cannot relieve yourself from liability for intentional or grossly negligent conduct. So to the extent that any damage was caused intentnionally or with gross negligence, the waiver would not apply.
However, the law does provide that one cannot contract away liability for:
- intentional actions
- gross negligence(*)
Mike Jacobs writes
A skydiving instructor who is obviously drunk (to the point where other employees of the company should have noticed), or who doesn't have the appropriate license (and the company knows that) will be gross negligence, and the waiver won't apply.
Coming late to this thread, I only have a few points to add to others' worthwhile comments. First, most if not all USA states adhere to the "objective theory" of contract formation. That is, whether Joe Contractor read the contract he was signing or not, or understood it or not, he will be held to the standard of what a hypothetical "reasonable person" would have done, and understood, in the circumstances. It doesn't matter what Joe subjectively thought the contract meant; all that matters is its reasonable, objective meaning, and the fact that he signed it indicating his agreement to those terms. If that's "common sense", then yes, it takes precedence.