During today's class we discussed the law surrounding exculpatory clauses relating to personal injury. How can we decide whether an exculpatory clause is enforceable?
A court must decide whether an exculpatory clause is enforceable or not. It is a provision in a contract where one party is relieved of any liability due to another party's wrongdoing, sometimes relating to a contract such as purchasing a sport ticket that cannot be refunded.
The enforceability of exculpatory clauses are variable in the different courts. The issue arrises as to whether an exculpatory clause is, in fact, a adhesion contract, that is to say a "take it or leave it" style contract where one party is left without much choice. This would be equivalent to someone entering a ball game, with the back of his ticket stating that the team is not liable for any damages incurred. His only option to avoid this "contract" would be to not enter the ball game,
One party has all of the power and the other is left with none. While some of these sorts of contracts are quite necessary i.e. set prices when purchasing common goods or services from stores, these occurrences are less extreme as a consumer still has a choice where he wants his hair cut.
A more extreme and possibly damaging case would be a gentleman signing a contract to enter the military, on his eighteenth birthday, without a real understanding of what will he asked or expected of him.
A court must decide whether an exculpatory clause is enforceable or not. One party is relieved of any blame or liability arising from the other person's wrongdoing. This often occurs when a person is freed from liability of a contract. This can occur when a dry cleaner states they are not liable for any damage that occurs to clothing when they perform their duty to clean it.
What if the dry cleaner could not stay open if they did not have a held harmless? For example, in a different category, many doctors could choose not to practice if there was not a cap on medical malpractice lawsuits for $250,000 in California, because they could not purchase insurance. Economic assurance is certainly the benefit. Sometimes it simply is not possible to absorb all of the costs of a liability.
While this illustration is not directly on topic, I think it correlates.
Adhesion contracts are disfavor-able because they just plain are not fair. We would like to teach our children that if they are some how negligent they should make proper amends. As in if your friend had loaned your coat, instead of the dry cleaner, and it was torn, you would expect him to replace it; however, if the dry cleaner spills bleach on it, they are released from responsibility simply because you were aware of the possibility that it could become damaged under their care.
They are a necessary evil for businesses (when they are, in fact, enforceable), however they contradict conscience as well as the concept of responsibility.
In my example given of a dry cleaner, I feel that the dry cleaner should not be relieved of liability. If the cleaners are clearly negligent in their process of washing the clothes, they should not be able to be held of zero liability since no fault can be placed on the person(s) who trusted them to correctly clean their clothes, other than choosing the wrong cleaner to give their clothes to. However, I believe that liability varies and can occur in various exculpatory clauses. In Tiffany's example with the baseball game, the adhesion clause should be held up since it is useful in that it prevents people from selling back their tickets at the last moment and causing the team to lose revenue due to not being able to sell back the ticket in time.
Exculpatory clauses are enforceable unless the business providing the contract is in direct relationship to the public. It is believed that public transportation, banks, and public facilities all specialize in serving the public and this is their duty. Because of this, they do not have the right to put all the blame and risk on the customer. This prevents them from serving the public efficiently. Also, businesses are limited on the amount of exculpatory clauses they are allowed to use because there must be some way to ensure that they are following correct business models. If the company is not at risk for any liability, then they have no motivation to do good by the consumers.
A court must decide whether an exculpatory clause is enforceable or not. It is a provision in a contract where one party is relieved of any liability due to another party's wrongdoing, sometimes relating to a contract such as purchasing a sport ticket that cannot be refunded.
ReplyDeleteThe enforceability of exculpatory clauses are variable in the different courts.
ReplyDeleteThe issue arrises as to whether an exculpatory clause is, in fact, a adhesion contract, that is to say a "take it or leave it" style contract where one party is left without much choice.
This would be equivalent to someone entering a ball game, with the back of his ticket stating that the team is not liable for any damages incurred. His only option to avoid this "contract" would be to not enter the ball game,
What is the rationale for disfavoring adhesion contracts?
ReplyDeleteOne party has all of the power and the other is left with none. While some of these sorts of contracts are quite necessary i.e. set prices when purchasing common goods or services from stores, these occurrences are less extreme as a consumer still has a choice where he wants his hair cut.
ReplyDeleteA more extreme and possibly damaging case would be a gentleman signing a contract to enter the military, on his eighteenth birthday, without a real understanding of what will he asked or expected of him.
A court must decide whether an exculpatory clause is enforceable or not. One party is relieved of any blame or liability arising from the other person's wrongdoing. This often occurs when a person is freed from liability of a contract. This can occur when a dry cleaner states they are not liable for any damage that occurs to clothing when they perform their duty to clean it.
ReplyDeleteHow does it serve public policy to "relieve a person of liability as in the example of a dry cleaner?
ReplyDeleteIn response to Anthony:
ReplyDeleteWhat if the dry cleaner could not stay open if they did not have a held harmless?
For example, in a different category, many doctors could choose not to practice if there was not a cap on medical malpractice lawsuits for $250,000 in California, because they could not purchase insurance.
Economic assurance is certainly the benefit. Sometimes it simply is not possible to absorb all of the costs of a liability.
While this illustration is not directly on topic, I think it correlates.
This comment has been removed by the author.
ReplyDeleteAdhesion contracts are disfavor-able because they just plain are not fair. We would like to teach our children that if they are some how negligent they should make proper amends.
ReplyDeleteAs in if your friend had loaned your coat, instead of the dry cleaner, and it was torn, you would expect him to replace it; however, if the dry cleaner spills bleach on it, they are released from responsibility simply because you were aware of the possibility that it could become damaged under their care.
They are a necessary evil for businesses (when they are, in fact, enforceable), however they contradict conscience as well as the concept of responsibility.
In my example given of a dry cleaner, I feel that the dry cleaner should not be relieved of liability. If the cleaners are clearly negligent in their process of washing the clothes, they should not be able to be held of zero liability since no fault can be placed on the person(s) who trusted them to correctly clean their clothes, other than choosing the wrong cleaner to give their clothes to. However, I believe that liability varies and can occur in various exculpatory clauses. In Tiffany's example with the baseball game, the adhesion clause should be held up since it is useful in that it prevents people from selling back their tickets at the last moment and causing the team to lose revenue due to not being able to sell back the ticket in time.
ReplyDeleteExculpatory clauses are enforceable unless the business providing the contract is in direct relationship to the public. It is believed that public transportation, banks, and public facilities all specialize in serving the public and this is their duty. Because of this, they do not have the right to put all the blame and risk on the customer. This prevents them from serving the public efficiently. Also, businesses are limited on the amount of exculpatory clauses they are allowed to use because there must be some way to ensure that they are following correct business models. If the company is not at risk for any liability, then they have no motivation to do good by the consumers.
ReplyDelete