Exculpatory Clause Lawyers
What Is An Exculpatory Clause?
An exculpatory clause is part of an agreement which relieves one party from liability. It is a provision in a contract which is intended to protect one party from being sued for their wrongdoing or negligence.
What Are Some Examples Of Exculpatory Clauses?
Exculpatory clauses are included in almost every contract, and you probably encounter them everyday without ever knowing it. Some examples of exculpatory clauses are:
- A restaurant checks your coat but your ticket states they are not responsible for loss or damage
- A parking lot agreement where the parking lot says it is not responsible for loss of contents or damage to the vehicle
- A drycleaner who says they are not responsible for changes in the color or texture of the garments
- A provision in a lease where the landlord says he is not responsible for damage, injury, or loss which occurs on the property
- A clause in a trust agreement which relieves the trustee from liability resulting from any act performed in good faith under the trust
Are Exculpatory Clauses Enforceable?
The general rule is that exculpatory clauses are enforceable if they are reasonable. They are not valid if they are unconscionable or unreasonable. Additionally, they cannot excuse liability from harm which is caused intentionally or recklessly. Courts will also consider a number of factors in determing whether or not to enforce an exculpatory clause, including:
- The clause should be conspicuous. This means it should be in larger type or a different type style, meaning in bold, all capitals, or different color.
- The wording should be clear and understandable so that an ordinary person knows what they are contracting away.
- The clause should be specific and state specific theories of liability, such as "negligence." The court will consider whether the releasing party knew and appreciated the risk.
- The bargaing power of each party and public policy.
- The intent of the parties. An exculpatory clause will be enforced if intent to relieve a party from liability is clear and unequivocal.
Should I Consult An Attorney About Exculpatory Clauses?
An attorney can be helpful in any contractual situation. Whether you need a contract drafted, want to modify an existing contract, or have been sued for breaching a contract, an attorney can inform you of your options. Additionally, an attorney can help create, enforce, or invalidate exculpatory clauses in your contract.
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Last Modified: 02-23-2011 03:30 PM PST
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