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You may not recognize the term exculpatory clauses; however, 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.

Don't be shellfish...

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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.

Don't be shellfish...

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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?

Don't be shellfish...