Disclaimer
Encyclopedia
Uncertainty
Uncertainty is a term used in subtly different ways in a number of fields, including physics, philosophy, statistics, economics, finance, insurance, psychology, sociology, engineering, and information science...
, waiver
Waiver
A waiver is the voluntary relinquishment or surrender of some known right or privilege.While a waiver is often in writing, sometimes a person's actions can act as a waiver. An example of a written waiver is a disclaimer, which becomes a waiver when accepted...
, or risk
Risk
Risk is the potential that a chosen action or activity will lead to a loss . The notion implies that a choice having an influence on the outcome exists . Potential losses themselves may also be called "risks"...
.
A disclaimer may specify mutually agreed and privately arranged terms and conditions as part of a contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
; or may specify warnings or expectations to the general public
Public
In public relations and communication science, publics are groups of individuals, and the public is the totality of such groupings. This is a different concept to the sociological concept of the Öffentlichkeit or public sphere. The concept of a public has also been defined in political science,...
(or some other class of persons) in order to fulfill a duty of care
Duty of care
In tort law, a duty of care is a legal obligation imposed on an individual requiring that they adhere to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence. The claimant...
owed to prevent unreasonable risk of harm or injury
Negligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
. Some disclaimers are intended to limit exposure to damages
Damages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...
after a harm or injury has already been suffered. Additionally, some kinds of disclaimers may represent a voluntary waiver
Waiver
A waiver is the voluntary relinquishment or surrender of some known right or privilege.While a waiver is often in writing, sometimes a person's actions can act as a waiver. An example of a written waiver is a disclaimer, which becomes a waiver when accepted...
of a right or obligation that may be owed to the disclaimant.
Disclaimers vary in terms of their uniformity. Some may vary depending on the specific context and parties involved, while other types of disclaimers may strictly adhere to a uniform and established set of formalities that are rarely or never modified, except under official authority. Some of these formal disclaimers are required pursuant to industry regulation
Regulation
Regulation is administrative legislation that constitutes or constrains rights and allocates responsibilities. It can be distinguished from primary legislation on the one hand and judge-made law on the other...
, qualification for protection under a safe harbor
Safe harbor
The term safe harbor has several special usages, in an analogy with its literal meaning, that of a harbor or haven which provides safety from weather or attack.-Legal definition:...
, and other situations where the exact wording of a particular clause or document may be dispositive in the event of a legal dispute. (See e.g., Product liability
Product liability
Product liability is the area of law in which manufacturers, distributors, suppliers, retailers, and others who make products available to the public are held responsible for the injuries those products cause...
, Toxicity Class
Toxicity Class
Toxicity Class refers to a classification system for pesticides that has been created by a national or international government-related or -sponsored organization...
, Rule against perpetuities
Rule against perpetuities
The common law rule against perpetuities forbids some future interests that may not vest within the time permitted; the rule "limit[s] the testator's power to earmark gifts for remote descendants"...
, Public Health Cigarette Smoking Act
Public Health Cigarette Smoking Act
The Public Health Cigarette Smoking Act is a United States federal law, passed in 1970, designed to limit the practice of smoking. It required a stronger health warning on cigarette packages, saying "Warning: The Surgeon General Has Determined that Cigarette Smoking Is Dangerous to Your Health"...
).
The presence of a disclaimer in a legally binding agreement does not necessarily guarantee that the terms of the disclaimer will be recognized and enforced in a legal dispute. There may be other legal considerations that render a disclaimer void either in whole or part.
Tort law
In law, a disclaimer is a statement denying responsibility intended to prevent civil liability arising for particular acts or omissions. Disclaimers are frequently made to escape the effects of the torts of negligenceNegligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
and of occupiers' liability towards visitors. The courts may or may not give effect to the disclaimer depending on whether the law permits exclusion of liability in the particular situation and whether the acts or omissions complained of fall within the wording of the disclaimer.
A disclaimer may take effect as a term of the contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
between the person making the disclaimer and the person who is thereby prevented from suing. This kind of disclaimer is, for example, invariably found in the 'terms and conditions' that a software user is confronted with when first installing the software. There will often be term excluding any liability for any damage that the software might cause to the rest of the user's software and hardware. By clicking "I Agree" in the dialogue box, users are agreeing to this disclaimer as matter of contract between themselves and the software company.
At common law, disclaimers can also have effect as conditions of a license
License
The verb license or grant licence means to give permission. The noun license or licence refers to that permission as well as to the document recording that permission.A license may be granted by a party to another party as an element of an agreement...
(i.e. permission) to enter land. An occupier of land will have certain duties to take care for the personal safety of people he or she allows onto the premises. By placing a sign at the entrance to the premises, such as "visitors enter at their own risk", the occupier may be able to stop entrants successfully suing in tort for damage or injury caused by the unsafe nature of the premises. Warnings or disclaimers contained in signs may, by a slightly different legal analysis leading to the same result, allow the person who would otherwise be responsible to rely on the defense of consent
Volenti non fit injuria
Volenti non fit injuria is a common law doctrine which means that if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they will not be able to bring a claim against the other party in tort or delict...
.
Under UK law
Law of the United Kingdom
The United Kingdom has three legal systems. English law, which applies in England and Wales, and Northern Ireland law, which applies in Northern Ireland, are based on common-law principles. Scots law, which applies in Scotland, is a pluralistic system based on civil-law principles, with common law...
, the validity of disclaimers is significantly limited by the Unfair Contract Terms Act 1977
Unfair Contract Terms Act 1977
The Unfair Contract Terms Act 1977 is an Act of Parliament of the United Kingdom which regulates contracts by restricting the operation and legality of some contract terms. It extends to nearly all forms of contract and one of its most important functions is limiting the applicability of...
. By virtue of the Act, a business cannot use a contract term or a notice to exclude or restrict its liability for negligence causing death or personal injury. In the case of other loss or damage, a disclaimer will only be effective so long as it is reasonable in all the circumstances. The common law in other nations may also place legal limits on the validity of disclaimers; for instance, the Australian Competition and Consumer Commission
Australian Competition and Consumer Commission
The Australian Competition and Consumer Commission is an independent authority of the Australia government. It was established in 1995 with the amalgamation of the Australian Trade Practices Commission and the Prices Surveillance Authority to administer the Trade Practices Act 1974...
has previously successfully sued Target Australia Pty Ltd for the usage of inaccessible disclaimers in advertisements (the televised advertisements in question contained disclaimers that were only shown on screen for 1.5 seconds).
Patent law
In patent lawPatent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
, a disclaimer identifies, in a claim
Claim (patent)
Patent claims are the part of a patent or patent application that defines the scope of protection granted by the patent. The claims define, in technical terms, the extent of the protection conferred by a patent, or the protection sought in a patent application...
, subject-matter that is not claimed. By extension, a disclaimer may also mean the action of introduction a negative limitation in a claim, i.e. "an amendment to a claim resulting in the incorporation therein of a "negative" technical feature, typically excluding from a general feature specific embodiments or areas". The allowability of disclaimers is subject to particular conditions, which may vary widely from one jurisdiction to another.
Estate law
In estateEstate (law)
An estate is the net worth of a person at any point in time. It is the sum of a person's assets - legal rights, interests and entitlements to property of any kind - less all liabilities at that time. The issue is of special legal significance on a question of bankruptcy and death of the person...
or inheritance
Inheritance
Inheritance is the practice of passing on property, titles, debts, rights and obligations upon the death of an individual. It has long played an important role in human societies...
law, a disclaimer (also called disclaimer of interest
Disclaimer of interest
Disclaimer of interest , in the law of inheritance, wills and trusts, is a term that describes an attempt by a person to renounce their legal right to benefit from an inheritance or through a trust.There are a number of reasons why a person might wish to avoid an inheritance, particularly if the...
) is a written document voluntarily signed by an heir to an estate in which the said heir does not accept (disclaims) the part of the estate of a deceased person which the heir is entitled to receive. The disclaimed part of the estate is then inherited not necessarily by a person of the disclaiming heir's choice, but by the next heir in line to receive that part of the estate as if the disclaiming heir were also deceased, either according to the will
Will (law)
A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his/her estate and provides for the transfer of his/her property at death...
, beneficiary designation, or the laws of intestacy
Intestacy
Intestacy is the condition of the estate of a person who dies owning property greater than the sum of their enforceable debts and funeral expenses without having made a valid will or other binding declaration; alternatively where such a will or declaration has been made, but only applies to part of...
. Government tax
Tax
To tax is to impose a financial charge or other levy upon a taxpayer by a state or the functional equivalent of a state such that failure to pay is punishable by law. Taxes are also imposed by many subnational entities...
agencies have further rules on such disclaimers. Reasons for such disclaimers may include imminent death of the disclaimant or the fact that the disclaimant already has enough wealth. For full article, see Disclaimer of interest
Disclaimer of interest
Disclaimer of interest , in the law of inheritance, wills and trusts, is a term that describes an attempt by a person to renounce their legal right to benefit from an inheritance or through a trust.There are a number of reasons why a person might wish to avoid an inheritance, particularly if the...
.
Literature
The all persons fictitious disclaimerAll persons fictitious disclaimer
An all persons fictitious disclaimer is a disclaimer in which a work of media states that all persons portrayed in it are fictitious. This is done to reduce the possibility of legal action for libel from any person who believes that he or she has been libeled via their portrayal in the work .Such a...
is a standard disclaimer used in works of fiction in an attempt to avoid liability for defamation.
In the case of fan fiction
Fan fiction
Fan fiction is a broadly-defined term for fan labor regarding stories about characters or settings written by fans of the original work, rather than by the original creator...
, the author will usually give a disclaimer saying that the author of the fan fiction does not, in any way, profit from the story and that all creative rights to the characters belong to their original creator(s).