Within a
contract
A contract is an agreement that specifies certain legally enforceable rights and obligations pertaining to two or more parties. A contract typically involves consent to transfer of goods, services, money, or promise to transfer any of thos ...
, an exculpatory clause is a statement that aims to prevent one party from holding the other party liable for damages. An exculpatory clause is generally only enforceable if it does not conflict with existing
public policy
Public policy is an institutionalized proposal or a Group decision-making, decided set of elements like laws, regulations, guidelines, and actions to Problem solving, solve or address relevant and problematic social issues, guided by a conceptio ...
. The two other prerequisites for an exculpatory clause to be valid are that the contract must pertain to the involved parties' private affairs, and each of the involved parties must be free bargaining agents to the contract in question such that there is no
adhesion
Adhesion is the tendency of dissimilar particles or interface (matter), surfaces to cling to one another. (Cohesion (chemistry), Cohesion refers to the tendency of similar or identical particles and surfaces to cling to one another.)
The ...
.
Example uses
*In
hospitality law, exculpatory clauses are sometimes used in waivers to absolve hotels of liability regarding unstaffed swimming pools open for visitor use, aided by signs displaying language such as "swim at your own risk".
*In
construction law
Construction law is a branch of law that deals with matters relating to building construction, engineering, and related fields. It is in essence an amalgam of contract law, commercial law, planning law, employment law and tort. Construction law co ...
and
real estate, exculpatory clauses are sometimes included in
nonrecourse loans to minimize personal liability for the borrower.
*Exculpatory clauses are also applied more generally in construction law to immunize a person from the consequences of his/her negligence, though this application is subject to stringent standards.
*
Ski resort
A ski resort is a resort developed for skiing, snowboarding, and other winter sports. In Europe, most ski resorts are towns or villages in or adjacent to a ski area–a mountainous area with pistes (ski trails) and a ski lift system. In North Am ...
s typically defend themselves with exculpatory clauses due to the inherent risk of injury involved with skiing, and thus it is usually very difficult for skiers to successfully win a
personal injury lawsuit against the resort.
*In
aviation law, activities like
skydiving
Parachuting and skydiving are methods of descending from a high point in an atmosphere to the ground or ocean surface with the aid of gravity, involving the control of speed during the descent using a parachute or multiple parachutes.
For hu ...
and performing an
air show
An air show (or airshow, air fair, air tattoo) is a public event where aircraft are trade fair, exhibited. They often include aerobatics demonstrations, without which they are called "static air shows" with aircraft parked on the ground.
The ...
are typically uninsurable due to carrying such a high level of risk; this necessitates the usage of exculpatory clauses as
risk management tools
In simple terms, risk is the possibility of something bad happening. Risk involves uncertainty about the effects/implications of an activity with respect to something that humans value (such as health, well-being, wealth, property or the environ ...
, so that individuals and businesses can defend against lawsuits in the event of injury or death.
*In
medical law
Medical law is the branch of law which concerns the prerogatives and responsibilities of medical professionals and the rights of the patient. It should not be confused with medical jurisprudence, which is a branch of medicine, rather than a br ...
, most jurisdictions have ruled that exculpatory clauses are generally considered invalid for
medical malpractice
Medical malpractice is a legal cause of action that occurs when a medical or health care professional, through a negligent act or omission, deviates from standards in their profession, thereby causing injury or death to a patient. The negligen ...
cases because health care is an important and sensitive area of public interest,
though a common exception to this trend exists for
experimental procedures.
Additional resources
Chart of exculpatory clause laws for all 50 U.S. states(begins on page 8; updated January 13, 2022)
References
{{reflist
Contract clauses
Tort law