I must respectfully disagree. It can be a significant and useful feature of a contract fully negotiated by parties of equal bargaining power and it comes up quite frequently as something desired by both sides in contracts between sophisticated entities like businesses.
I do however find clauses like this absolutely abhorrent in a take it or leave it contract where the bargaining power is grossly uneven. I find it even more disturbing when such contracts are essentially presented after the fact, such as when printed on the back of a ticket or...included as part of a mandatory update for a system you purchased long ago and can no longer return.
This. I feel that the law should make a sharp distinction between "a contract fully negotiated by parties of equal bargaining power and it comes up quite frequently as something desired by both sides in contracts between sophisticated entities" and the sort of cookie-cutter fine-print contracts that consumers are presented with. One should be able to agree to very broad things in a fully negotiated contract. Consumer contracts, on the other hand, should be quite restricted both in power and in length.
There might be some cases where it makes sense. Think about stupidly extreme sports (SES) for example. If someone organises a SES event for you, it might be reasonable for you to have an agreement that says they checked everything they could and you were informed about everything you should. But you shouldn't be able to sue them when you get hurt, since you knew from the beginning the whole thing will be dangerous. It doesn't have to be SES to apply this logic to some extent however. Every time I go kayaking on an artificial course I sign some "I'm aware this is dangerous and I want to do it anyway" papers. I'm sure those papers would be the first thing presented in court if I wanted to sue the organisers for breaking some bones. It's not giving up my rights really, but has almost the same effect in a limited scope.
> But you shouldn't be able to sue them when you get hurt, since you knew from the beginning the whole thing will be dangerous.
Why not? Just because you sue them doesn't mean you're going to win. Maybe stupidly extreme sports purposely made the event more dangerous to ensure your injuries (and subsequent ratings). Signing away your right to sue puts you in an almost infinitely dangerous position.
If that is the case, any business that provides any activity that is remotely dangerous would not be able to stay in business without the huge overhead of a powerful legal team backing it. Consider skydiving, watersports, or even karting.
The high cost of frivolous legal defense is a completely separate issue. It should not be the basis for denying the right to sue. If someone is injured skydiving, it should up to a court to decide if that was a reasonable expectation or if there was negligence on the part of the business. The court shouldn't need to take months and tens of thousands of dollars to make such a determination.
In many countries, you can not give up your right to sue. For example in Australia, when you go skating and there is a sign "Skate at your own risk" it means nothing.
A lawyer needs to chime in, but I believe those signs in the US may only help some in cases of accidents. Just putting up a sign that says 'do X at your own risk' does not suddenly free the liable party from being sued for something happening due to negligence.
In the U.S. the sign would be relevant only to the extent that it would support a finding of contributory negligence (i.e. you were aware of the risk and took it anyway), which would be the case in Australia too since it's a common law concept. It would not bar a suit.
In general, you cannot in the U.S. sign a blanket waiver giving up your right to sue. Waivers are generally narrowly construed to limit their scope to what the parties foresaw, and some types of waivers are just void as against public policy. For example if you sign a waiver of liability when you go skydiving, it might protect the skydiving company against a suit if you land the wrong way and sprain your ankle, but it won't protect them against a suit if the pilot was drunk and the plane crashes.
I know this is fine when everyone is being moral/rational. But what prevents someone from maliciously suing the skating (or something more dangerous, such as skydiving) place for something they weren't really responsible for?
Nothing. But to win they would have to show that the company really was responsible for it, since the accused is innocent until proven guilty. The accused can also request a trial by jury; 12 people generally make the right decision.
(Note: not legal advice, and possibly only relevant to the US)
It probably isn't. But that doesn't mean they can't put it in the terms. Now you have to fight two things. First the terms and then the thing you are actually suing for. How convenient. Most people give up at the thought of that.
Not sure about Europe, but Portugal has all kinds of laws that says you can't sign your rights away in any contract (contract is declared void if it goes against this and as such, initial rights prevail)
IANAL but have you ever read an Open Source license? Or almost any other software license? If you cannot unload liabilities onto the consumer, you cannot have Open Source code. If you could sue for a defective "free" product we would be worse off. Or do you want to require all software to always, legally "work". At some point, customers should be held accountable for their choices.
