Webster's Encyclopedic Unabridged Dictionary
defines "waiver" as 1. an intentional relinquishment
of some right, interest, or the like; 2. an express or written
statement of such relinquishment. Actually it is appropriate that
waive rhymes with wave, because whether you're waiving or waving,
you're saying goodbye. In the case of a waiver, you may be "saying"
farewell to a right to holdanother party accountable for their
acts.
Today waivers are being used with increasing frequency. The use
of a waiver is for the primary benefit of the party requesting
it. A common rationale for using a waiver is that the possible
legal consequences of sponsoring an activity or event would be
too great to pursue without either special protection (such as
insurance) or a waiver. Here are some examples:
Permission slips are still around, but they're
generally just used when the consequences are quite low. Example:
"Please sign this form to indicate your permission for your
son/daughter to walk from their classroom to the library."
The use of permission slips has decreased along with the willingness
to assume responsibility for a given activity. Of course, the
reduced willingness is, at least partially, due to waivers. Waivers
do make sense when the threat of being sued exists alongside a
valid reason for not assuming the risk of a lawsuit. As permission
slips were found to be inadequate in the face of an increased
likelihood of lawsuits, such slips began to follow a type of evolutionary
path:
1. Permission slips allowing participation in an activity or event
2. Permission slips including authority to act in emergencies
(but the party may still be accountable for their action)
3. Permission slips waiving any right to sue for actions occurring
during an emergency
4. Waiving any action arising from both the routine and emergency
aspects of an activity
6. Waiving any action arising from both the routine and emergency
aspects of an activity AND
agreeing to assume the liability for the actions of another party.
Under certain circumstances, waivers are very
similar to advertising . . .they're sometimes only effective when
you believe in them. For instance, the person signing the waiver
may add a comment that he or she has only signed the waiver as
a formality, or under duress or protest. Often there are flaws
connected with the waiver, such as the wording being incorrect
or even illegal. An example of the latter is having a parent sign
a waiver concerning injuries to his or her child, when that state's
law doesn't permit a parent to waive a minor's rights. Another
example is when state law may hold one party strictly liable for
certain acts, regardless of any attempt to waive their responsibility.
Further, there are other elements that affect the enforceability
of waivers such as:
Waivers are sometimes unavoidable, unless you choose to skip the event or activity. And, sometimes, waivers are inconsequential, being used under circumstances where they are unnecessary. The problem is in that wide, murky, middle-ground. It's in such instances that you should take the time to read and understand a waiver before agreeing to its conditions. Perhaps you can't avoid assuming some risk or giving up your rights, but at the minimum, read before you sign so that you understand what could happen. So look before you waive.
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