What is a Waiver?
A waiver is a legal agreement under which an individual voluntarily relinquishes (or "waives") their rights to make a claim against someone else. Whereas a release form effectively discharges the party signing it from future liability or claims, a waiver effectively discharges the other party prior to any claim or event taking place. A waiver can be either express or implied, with implied waivers typically occurring when a person accepts the terms and conditions of attendance at an event. However, an express written waiver is always preferable to an implied verbal waiver.
The purpose behind the use of waivers is to protect the party who may otherwise be liable if someone else suffers a loss or injury during an event, or sustains a loss or injury that is related in some way to that party. This is particularly the case with recreational groups, sports teams, estate attorneys and businesses that host social and sporting events.
For example , when a local sports association hosts a midnight hockey tournament in Calgary, all players are asked to sign a waiver that reads, in part: I realize that participating in this adult hockey tournament involves risk of physical injury and even death, which may be caused my own actions or the actions, inactions, or negligence of others. At a minimum, the waiver releases the organizers from liability in the event someone loses an eye or breaks their leg – essentially, in any event that may result in a serious injury.
In order for a waiver to be considered legally binding, it must meet the following criteria: In addition, you must have done your best to inform the person signing the waiver about what exactly they are waiving. Explaining the risk involved in participating in a sporting event to a teen might be considerably different than explaining it to a senior.
Legal Aspects of a Binding Waiver
In order for a waiver to be enforceable, it must comply with the legal requirements for binding contracts. These essential elements include mutual consent, legal purpose, consideration, and certainty of terms. The waiver must be entered into voluntarily and with the informed consent of both parties. Basically, an agreement cannot be forced upon someone, nor should it contain language making them feel like they must sign the waiver.
Making the contract voluntary is particularly important when dealing with minors. Courts usually proceed with caution in finding that a release is voluntary when the injured party was under the legal age during the period when they signed the waiver. Other issues that might result in a waiver being found invalid or unenforceable include if it:
A waiver must have a legal purpose and may not be contrary to public policy or explicitly prohibited by law. Waivers that violate public policy are those that can be deemed to significantly harm specific sections of the public or restrict the availability of specific services to certain groups.
Additionally, a release or waiver that relieves someone of liability for their own negligence is against public policy and, therefore, void. For example, some states have found waivers of liability for negligence that involved allowing an adult to supervise or care for a minor as contrary to public policy. In these cases, courts ruled that the waiver did not sufficiently protect the rights of minors.
Furthermore, a waiver must be supported by consideration. This means that something must be given or offered in exchange for the waiver. The most common exchange for consideration in a waiver is membership or participation fees. Therefore, an individual who participates in a physical activity or organizes an event may ask that each party sign a waiver in exchange for sharing the costs or fees of these services equally.
A release also must be clearly written and cover the proposed contract. If the relevant terms of the release are not clearly stated, then the waiver is void and unenforceable. Likewise, if a waiver contains multiple contract terms, it will still be enforceable if at least one of the terms is clear and unambiguous.
When is a Waiver Unenforceable?
Waivers may not be enforceable if the consenting individual is unable to fully understand the nature and consequences of the waiver. A parent or legal guardian may sign a waiver on behalf of a child, but if the child is old enough to understand the consequences of the waiver, the parent or legal guardian may not be able to waive the child’s rights. It is clearer if the person providing the waiver is a legal guardian of the person for whom the waiver is being signed. However, the waiver must be drafted in such a way that only the signing individual and not a parent or guardian has the authority to sue in case of injury. Of course, involving minors raises issues for businesses, recreational activity venues and even churches. For example, a potential issue may arise if a parishioner who was made to sign a waiver was a minor at the time that he or she signed the waiver. Certain state laws may violate public policy protections afforded minors.
Coercion may also make a waiver unenforceable. Even if you have attempted to create an enforceable waiver, if the venue owner or activity operator has made participation in the activity contingent upon signing or providing another misleading impression so that the risk was either minimized or lied about, the waiver may not be enforceable. Existing Texas statute explicitly states that none of the provisions of the Recreational Sport Liability Act shall operate to limit the liability of any person who commits, or causes to be committed, an act or omission that constitutes an intentional tort. A waiver will usually be deemed unenforceable when a person committing an intentional tort maintains a waiver to protect against biohazardous exposure to employees from disease or other communicable disease and even foodborne illness.
Uses of Waivers Across Industries
Industries invest heavily in litigation preparedness because of the impact a jury award can have. While the practices they implement to avoid exposure vary, all industries should have a game plan for dealing with their potential liability. For example, the medical industry may utilize a complete, well-worded consent form to protect their interests. The sports industry implements a sports injury waiver. The agricultural and livestock industry uses a livestock liability waiver. Even the sex industry considers the use of sexual services waivers to protect themselves from liability. Notably, the hospitality and travel industries use waivers to mitigate their risk and protect themselves from liability. And companies that create and/or control experiences for people have also incorporated waivers.
With the increased prevalence of virtual reality (VR) headsets, terms and conditions waiving liability are often included in VR experiences. Additionally, rental equipment companies of all types, ranging from hiking gear to water sports equipment, often include liability waivers.
In practice, the types of liability waivers used by different industries may look different. Some industries create detailed, extensive liability waivers containing many clauses. Other industries may prefer to keep things fairly simple and have a brief one-page liability waiver containing only a few clauses. Some waivers may also require end-users to sign a digital waiver.
Does a Waiver Hold Up in Court?
Additionally, other factors, such as duress, or violations against public policy, can also void a waiver. A waiver is contrary to public policy if the result would give an unfair advantage to one party over another. Duress is found if an individual makes another do something by threatening legal action against them or another person if they do not .
The burden of proof to challenge a waiver is usually on the party trying to void the contract. However, the justification for the burden of proof is case by case dependent upon the circumstances of the waiver.
Issues, such the parties capacity and whether the waiver was called to the attention of the waiving party may play a role in the burden shifting analysis.
How to Make an Effective Waiver
Although the language and content of waivers varies between jurisdictions, there are several best practices for making sure that your waiver is effective and legally binding. First, using clear and unambiguous language is ideal and courts tend to view waivers with carefully defined terms more favorably. Second, because of the differing laws and treatment of waivers across the country, seeking legal counsel prior to crafting a waiver is wise. Finally, waivers should be tailored to be applicable and relevant to your particular business by addressing the specific risks inherent in your organization.
Conclusion: Why a Waiver is Important
As you can see, waivers are not as simple as they sound. They are legally binding documents designed to protect businesses from liability. However, their enforceability is not guaranteed and depends on a variety of factors. It is vital for both parties – the business and the individual signing the waiver – to understand the legal implications of the document to understand their rights and liabilities.
On one hand, businesses need to be aware that even though a person signs a waiver, it is not necessarily airtight. There are certain situations where the courts may still hold the business responsible for the individual’s injuries. Therefore, businesses need to be sure that their waivers are worded in such a way that there are no loopholes. It may even be a good idea to consult with a lawyer specializing in waivers to make sure that the waivers being distributed by the company are adequately protecting it – especially considering the amount of waivers a business may have people sign on a yearly basis .
On the other hand, individuals need to be aware of the consequences of them signing a waiver. Many may wrongly believe that once they have signed a waiver, they are unable to file a lawsuit if they’ve been injured. This is false, as there are a variety of ways to contest the waiver, but a vast majority of people do not know that. Therefore, it is important that if you are signing a waiver, you are aware of what you are giving up when you sign the waiver and what you may be able to do if you are injured after having signed one.
Without a thorough understanding of a waiver, your rights may be taken away from you. Therefore, whether you are a business or an individual, the best possible choice you can make is to understand what waivers entail before either having them drafted or signing one.