LS 034: Exculpatory Clauses: Signing Away Our Right to Sue

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You may not recognize the term exculpatory clauseshowever, it may surprise you to learn that you have signed dozens upon dozens (if not hundreds or thousands) of them. In fact, you may have even signed one today!

You have “agreed” to an exculpatory clause if you: (1) had a valet park your car; (2) received medical treatment of almost any kind; (3) signed a residential lease; (4) gone skydiving; (5) checked your coat in at a restaurant; (6) swam in a hotel pool; (7) used software or applications and clicked “AGREE” to the terms and conditions; (8) attended a concert; (9) gone on a  cruise; and much, much more.

Exculpatory clauses are agreements that relinquish a person’s right to hold another party liable for certain (or all) wrongful conduct. These clauses were once only used in connection with inherently dangerous activities (e.g. skydiving, white-water rafting, etc.) but can now be found in a seemingly endless array of activities, consumer products, and services.

Exculpatory clauses are everywhere… but are they enforceable? (SPOILER ALERT: YES… and NO)

In this episode, I interview Professor Scott J. Burnham, the Curley Professor of Commercial Law at Gonzaga University*, and author of Contract Law for Dummies, The Contract Drafting Guidebook, and Drafting Contracts. Professor Burnham guides us through the intricacies of exculpatory clauses and helps us understand the competing societal interests of freedom to contract vs. the right to hold wrongdoers accountable for their negligent, reckless, and intentional acts and omissions.

For further reading, please see Professor Burnham’s excellent law review article on exculpatory clauses: Are You Free to Contract Away Your Right to Bring a Negligence Claim?, 89 Chicago-Kent Law Review 379 (2014). It is available at http://studentorgs.kentlaw.iit.edu/cklawreview/issues/vol-89-issue-1/

 

* The views expressed in this podcast episode are those of Professor Burnham and not those of Gonzaga University or Gonzaga University School of Law.

 

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LS 033: Basic Contracts 102: Defenses

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In this second part of our two-episode series on basic U.S. contract law, we discuss the various defenses to contract formation and breach, including: lack of acceptance, lack of consideration, lack of capacity, illegality, violation of public policy, unconscionability, ambiguity, misrepresentation, duress, Statute of Frauds, rescission, impossibility, prevention of performance, failure of condition precedent, and accord and satisfaction.

 

 

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LS 032: Basic Contracts 101: Contract Formation (Offer, Acceptance, Consideration)

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A contract is a voluntary, private, legally enforceable agreement between two or more parties. To be valid, a contract must, at minimum, consist of an offer, acceptance, and consideration. In this episode, we discuss the formation of contracts, and delve into the following questions

  • What is the difference between bilateral and unilateral contracts?
  • What is an “offer?”
  • When does an offer expire?
  • What constitutes “acceptance?”
  • What is “consideration?” (HINT: it has nothing to do with being considerate!)
  • When is consideration adequate?

 

 

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LS 031: Living Wills and Health Care Proxies

Monumental advances in medical technology have made it possible for human life to be extended dramatically, often with unintended consequences. The ability to suspend death artificially (e.g. hydration and feeding, mechanical ventilation, surgery, etc.) creates a painful dilemma. How long do you want to live?  What means do you want your doctors to employ to keep you alive? What are the parameters doctors and hospital staff should follow in determining when to refuse (or modify) care?

Without a living will, all of these decisions could end up being made by a doctor, a nurse, or even a judge.

A living will is a legal document that allows a person who is incapacitated (e.g. vegetative state, coma, permanent unconsciousness, brain injury, etc.) to specify the type and scope of care he or she wishes to receive. In this episode, we explore the importance of living wills in ensuring that our final wishes are obeyed.

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LS 030: Should You Go to Law School?

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Are you considering applying to law school? Have you been accepted to law school and are now considering whether to enroll?

Deciding whether to attend law school is one of the most important decisions you will make. Regardless of your ultimate decision, there are many factors to consider. In this episode, we discuss (in great detail), and with many attempts at humor (some successful), whether law school is right for you.

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