Disclaimer Laws

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  What Is a Disclaimer?

A disclaimer is a type of statement that can be used to specify the rights that may be enforceable against parties who are in a legally valid relationship. Some examples of legally valid relationships may include those that are established between:

  • A manufacturer and a consumer;
  • A property owner and their guest; and/or
  • A homebuyer and a seller.

In general, a disclaimer will typically serve to relieve a party to a contract or within a legally valid relationship from liability in situations that involve uncertainty or risk. For instance, a warning label or a sign is one standard form of a disclaimer that you may have seen when purchasing a product.

Another example would be if you saw a sign that said, “approach or use at your own risk,” when entering the premises of a property like a junkyard or a playground. In these scenarios, the disclaimer could then be used to remove or reduce the property owner’s liability in the event that a person was injured while rummaging around their junkyard or playing on their playground equipment.

Are Disclaimers Enforceable by Law?

Whether a disclaimer may be enforced or not will depend on the type of disclaimer being used. It can also depend the laws enacted in the state wherein the related incident occurs or the disclaimer document applies.

It is important to note that disclaimers can be used in almost any type of legal or social relationship. As such, demonstrating that a disclaimer is enforceable against a party can sometimes be a challenging endeavor to undertake without the help of a good lawyer.

Another obstacle that a person who is attempting to enforce a disclaimer may need to overcome is showing that all parties involved did in fact consent to the disclaimer. The reason for this is because a disclaimer will usually not be enforceable against a party who did not consent to it or was illegally coerced into accepting the terms of the disclaimer.

A disclaimer also cannot violate any area of the law. This is especially true if the disclaimer statement in question discriminates against a person or violates one’s constitutional rights.

On the other hand, a disclaimer will be enforceable if a person can prove that a party gave valid consent. There are a number of ways in which a person can provide valid consent to a disclaimer. For instance, many contracts contain a disclaimer clause. If a person reviews the contract, does not object to the disclaimer clause, and subsequently signs the contract, then this will indicate that the person consented to being bound by the disclaimer clause in the contract.

In addition, a person may imply that they gave consent to a disclaimer through their actions. This can include entering the premises of a certain property that provided sufficient warning notices or signs (e.g., “beware of dangerous conditions”). When it comes to purchasing products, this type of disclaimer may be referred to as an “as is” disclaimer or an implied warranty.

When a person purchases a product that is being sold “as is”, it means that they are accepting the product in any condition even if it is considered to be defective or dangerous. Those who intend to purchase a product “as is” should consider consulting a lawyer first since state regulations on “as is” disclaimers can vary by jurisdiction.

Accordingly, a buyer may be able to hold a seller of an “as is” product responsible for any injuries they receive from their products in certain situations that are governed by state-specific laws.

What Are Other Examples of Disclaimers?

A disclaimer statement can be used to reduce liability in numerous situations that involve a risk or threat of injury, harm, and/or financial loss. Some common places in which a person can often find a disclaimer may include the following:

  • On the packaging or within advertisements for various consumer products;
  • In the terms of a license document that permits a person to do business in a certain location or allows a person to use a particular property for a specified period;
  • As part of the terms of a contract or a contract clause, such as those that waive a party’s right to sue when certain previously agreed upon conditions arise;
  • In the instructions for herbal supplements, vitamins, over-the-counter medications, or prescribed pharmaceuticals; and/or
  • On warning notices or signs that are posted near construction sites, stadiums, playgrounds, and any other areas that could result in serious harm to a person if they are not careful when entering the property in question.

The above list only contains some of the most common examples of where one may find a disclaimer statement. However, there are many other kinds of disclaimers that can be used and thus disclaimers may be found in other places. Additionally, the laws in some states render certain types of disclaimers as legally invalid. This means that a disclaimer will have no legal effect under the law in those states and therefore a party will not be allowed to enforce it.

What If I Have Legal Issues with a Disclaimer?

As previously mentioned, the rationale behind using a disclaimer is that it is meant to relieve a party from being held responsible for all or some legal liability related to a specific activity. For instance, with a high-risk activity, such as scuba diving or bungee jumping, an individual will usually be asked to sign a waiver or a disclaimer before they participate in the high-risk activity.

Such waivers and disclaimers will then basically release the company sponsoring the scuba diving or bungee jumping activity from liability in the event that the individual suffers any injuries while engaged in those activities. These documents also limit the individual’s ability to recover damages for their injuries in court.

Thus, it is very important for persons to review or to hire a lawyer to review the terms of documents like waivers and disclaimers before signing them. Otherwise, they may be giving up their right to sue a company for injuries they sustain from an activity or while on a business’s premises.

Do I Need a Lawyer for Disclaimer Laws?

It is generally recommended that a person retain a lawyer who practices in law in their state or county when it comes to matters that involve disclaimer laws. A products and services lawyer who has experience in handling cases with legal issues that concern disclaimer statements will be able to provide legal guidance on the relevant disclaimer laws.

In addition, your lawyer will be able to draft or review any documents that contain a disclaimer or a waiver before you sign them and can ensure that you are not giving up any important legal rights, such as the right to sue a party for damages. Your lawyer can review a disclaimer statement to make sure that it is enforceable against another party, or alternatively, that it is not enforceable against you as well.

Finally, your lawyer will also be able to provide legal representation in court if you are being sued or would like to bring a lawsuit against another party for violating a disclaimer or waiver statement.

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