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Article
Unenforceable Waivers
Vanderbilt Law Review
  • Edward K. Cheng, Vanderbilt University Law School
  • Ehud Guttel, Hebrew University of Jerusalem
  • Yuval Procaccia, Reichman University
Document Type
Article
Publication Date
1-1-2023
Keywords
  • tort law,
  • waivers of liability,
  • unenforceability
Disciplines
Abstract

Textbook tort law establishes that waivers of liability-—especially those involving physical harm-—are often unenforceable. This Essay demonstrates through an extensive survey of the case law that despite being unenforceable, such waivers remain in widespread use. Indeed, defendants frequently use waivers even when a court has previously declared their specific waivers to be void. So why do such waivers persist? Often the simple answer is to hoodwink would-be plaintiffs. Waivers serve as costless deterrents to tort claims: Either they dupe naïve victims into believing that their claims are barred, or if not, the defendant is no worse off than before. Such flouting of unenforceability doctrine undermines the goals of the tort system-—denying compensation to victims and eroding the care incentives of prospective injurers. In this Essay, we focus some long-overdue attention on the problem of unenforceable waivers and explore some solutions.

Citation Information
Edward K. Cheng, Ehud Guttel and Yuval Procaccia. "Unenforceable Waivers" Vanderbilt Law Review Vol. 76 Iss. 2 (2023) p. 571 ISSN: 0042-6229
Available at: http://works.bepress.com/edward-cheng/32/