A
disclaimer is generally any statement intended to specify or delimit the scope of rights and obligations that may be exercised and enforced by parties in a legally-recognized relationship. In contrast to other terms for legally operative language, the term
disclaimer usually implies situations that involve some level of
uncertaintyUncertainty is a term used in subtly different ways in a number of fields, including philosophy, physics, statistics, economics, finance, insurance, psychology, sociology, engineering, and information science...
,
waiverA 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
riskRisk is a concept that denotes the precise probability of specific eventualities. Technically, the notion of risk is independent from the notion of value and, as such, eventualities may have both beneficial and adverse consequences...
.
A disclaimer may specify mutually-agreed and privately-arranged terms and conditions as part of a
contractIn law, a contract is a binding legal agreement that is enforceable in a court of law. That is to say, a contract is an exchange of promises for the breach of which the law will provide a remedy....
; or may specify warnings or expectations to the general
publicPublic, adj, is of or pertaining to the people; relating to, or affecting, a nation, state, or community; opposed to private; as, the public treasury, a road or lake...
(or some other class of persons) in order to fulfill a
duty of careIn 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...
owed to prevent
unreasonable risk of harm or injuryNegligence is a legal concept in the common law legal systems usually used to achieve compensation for injuries . Negligence is a type of tort or delict . However, the concept is sometimes used in criminal law as well...
.
A
disclaimer is generally any statement intended to specify or delimit the scope of rights and obligations that may be exercised and enforced by parties in a legally-recognized relationship. In contrast to other terms for legally operative language, the term
disclaimer usually implies situations that involve some level of
uncertaintyUncertainty is a term used in subtly different ways in a number of fields, including philosophy, physics, statistics, economics, finance, insurance, psychology, sociology, engineering, and information science...
,
waiverA 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
riskRisk is a concept that denotes the precise probability of specific eventualities. Technically, the notion of risk is independent from the notion of value and, as such, eventualities may have both beneficial and adverse consequences...
.
A disclaimer may specify mutually-agreed and privately-arranged terms and conditions as part of a
contractIn law, a contract is a binding legal agreement that is enforceable in a court of law. That is to say, a contract is an exchange of promises for the breach of which the law will provide a remedy....
; or may specify warnings or expectations to the general
publicPublic, adj, is of or pertaining to the people; relating to, or affecting, a nation, state, or community; opposed to private; as, the public treasury, a road or lake...
(or some other class of persons) in order to fulfill a
duty of careIn 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...
owed to prevent
unreasonable risk of harm or injuryNegligence is a legal concept in the common law legal systems usually used to achieve compensation for injuries . Negligence is a type of tort or delict . However, the concept is sometimes used in criminal law as well...
. Some disclaimers are intended to limit exposure to
damagesIn law, damages are money claimed by, or ordered to be paid to, a person as compensation for loss or injury Black's Law Dictionary.- Compensatory damages :...
after a harm or injury has already been suffered. Additionally, some kinds of disclaimers may represent a voluntary
waiverA 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
regulationRegulation is "controlling human or societal behaviour by rules or restrictions." Regulation can take many forms: legal restrictions promulgated by a government authority, self-regulation, social regulation , co-regulation and market regulation. One can consider regulation as actions of conduct...
, qualification for protection under a
safe harborThe 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 liabilityProduct 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.-Theories of liability:...
,
Toxicity ClassToxicity Class refers to a classification system for pesticides created by a national or international government-related or -sponsored organization...
,
Rule against perpetuitiesThe rule against perpetuities at common law invalidates certain future interests that may vest beyond the time of perpetuities. In essence, the rule "limit[s] the testator's power to earmark gifts for remote descendants".The perpetuities period under the common law rule is not a fixed term of years...
,
Public Health Cigarette Smoking ActThe 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 is a legal concept in the common law legal systems usually used to achieve compensation for injuries . Negligence is a type of tort or delict . However, the concept is sometimes used in criminal law as well...
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
contractIn law, a contract is a binding legal agreement that is enforceable in a court of law. That is to say, a contract is an exchange of promises for the breach of which the law will provide a remedy....
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
licenseThe verb license or grant license means to give permission. The noun license refers to that permission as well as to the document memorializing that permission. License may be granted by a party to another party as an element of an agreement between those parties...
(ie. 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
consentVolenti 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 cannot then sue if harm actually results...
.
Under
UK lawThe 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 1977The Unfair Contract Terms Act 1977 is a British Act of Parliament 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 disclaimers 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 CommissionThe Australian Competition and Consumer Commission is an independent authority of the government of Australia. 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 lawA patent is a set of exclusive rights granted by a state to an inventor or their assignee for a limited period of time in exchange for a public disclosure of an invention....
, a disclaimer is an amendment consisting in limiting a
claimPatent claims are usually in the form of a series of specified elements and corresponding limitations, or more precisely noun phrases, following the description portion of the invention in a patent or patent application. The claims define, in technical terms, the extent of the protection conferred...
of a patent or
patent applicationA patent application is a request pending at a patent office for the grant of a patent for the invention described and claimed by that application. An application consists of a description of the invention , together with official forms and correspondence relating to the application...
by introducing a negative feature. The allowability of disclaimers is subject to particular conditions, which may vary widely from one country to another
Estate law
In
estateAn 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
inheritanceInheritance is the practice of passing on property, titles, debts, 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 interestDisclaimer 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
willA will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his estate and provides for the transfer of his property at death. For the devolution of property not disposed of by will, see inheritance and intestacy...
, beneficiary designation, or the laws of
intestacyIntestacy is the condition of the estate of a person who dies owning property greater than the sum of his 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
taxTo 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 interestDisclaimer 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 disclaimerAn all persons fictitious disclaimer is a disclaimer in which a work of fictional media states that all persons portrayed in it are completely fictitious. This is done so to avoid the possibility of legal action for libel; i.e...
is a standard disclaimer used in works of fiction in an attempt to avoid liability for defamation.
In the case of
fanfictionFan 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 fanfiction does not, in any way, profit from the story and that all creative rights to the characters belong to their original creator(s).