More About Website Policies
The Purpose of a Disclaimer
Basically, the disclaimer is a statement denying responsibility while intending to perform a “Duty of Care” so that “negligence” will not prevail in the assessment of “damages” that the victim can claim.
The Need for a Disclaimer
When one uses a disclaimer, the general idea is to protect oneself from lawsuits arising from one’s statements, promises, and actions not producing desired or expected results. It attempts to prevent civil liability arising from particular acts or omissions.
Disclaimers are used for situations that involve some level of uncertainty, risk, or waiver.
The disclaimer attempts to specify the scope of rights and obligations for which the provider of the information, product, or service is to be held liable. It also attempts to require that the recipient of the information, product, or service waive their rights to seeking punitive and economic types of damages from the use of whatever was provided.
What Exactly Defines “Uncertainty”?
The exact legal definition of “uncertainty” that can be upheld in a court, can vary; but, it can generally be assumed that uncertainty is the lack of certainty due to the condition of having limited knowledge resulting in the inability to know and describe an existing state, future outcome, or the number of possible outcomes that result from the use of the information, product, or service rendered.
Can “Risk” Also be Defined?
“Risk”, is a state of uncertainty wherein some of the possible outcomes have the potential to create an undesirable effect or cause significant loss and regret. However, risk implies some ability to measure the susceptibility for harm. To some extent, risk implies that a choice exists regarding the outcome of the action taken.
Is There Really a Difference Between “Uncertainty” and “Risk”?
Uncertainty provides for the existence of more than one possible outcome, but the outcome is unknown.
Risk, however, is the state of possible outcomes that acknowledges possible loss, undesirable outcome, and enough knowledge to assess an expected after-the-fact level of regret.
It is possible to have uncertainty without risk, but not to have risk without uncertainty.
What is the “Waiver” that is Built into the Disclaimer
The “waiver” is the voluntary surrender by the user of the information, product, or service to enforce a right or privilege to legal suit for harm arising from reliance upon claims made.
The waiver intends to hold harmless the provider of the object to which the delivery of is basically deemed “as is” and the use of is “at your own risk”.
The waiver is the attempt to protect the provider from any level of dissatisfaction experienced by the user.
What the Person Waives
Generally, a person waives his or her rights to hold another responsible for intentional or unintentional actions and results due to the provision of the information, product, or service being utilized.
Because disclaimers involve the action of waiving ones’ rights to redress for harm caused, the disclaimer needs to be rather clear as to what is being waived. However, in most cases, it is presumed that one knows their rights and voluntarily relinquishes them.
The creation of a disclaimer frequently involves mutually agreed upon terms and conditions. The disclaimer may specify warnings or expectations in the attempt to fulfill a “duty of care” that intends to prevent unreasonable risk of harm to the person acting on the information provided or in using the product or service rendered.
The Duty of Care
The duty of care is a legal obligation imposed on individuals. It requires that one perform with reasonable care so as to not perform any act that could foresee-ably cause harm, undesirable results, loss and regret. If such duty of care is not performed, then negligence is assumed; and, that may possibly subject the performer of the action to liability to another for the harm created.
The Limit of Liability
The disclaimer attempts to limit the extent of damages that the victim can claim. The disclaimer may also represent a voluntary waiver (dismissal) of any right or obligation that may be owed to the damaged party.
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