Disclaimers, if you have one, you want it to be enforceable so it can protect you from liability. What are the legal requirements for an enforceable disclaimer? Before we get into that, let’s talk about what a disclaimer actually does. A disclaimer allows a person to limit or exclude liability to another person (such as a consumer or participant). You can contract out of liability, including liability for your own negligence, if your disclaimer meets the legal requirements. A recent judgment sets out the legal requirements for a disclaimer. You should test your existing one to see if it’s worth the paper it is written on.
A disclaimer and indemnity usually go together. One party can agree to hold the other harmless against claims arising from the disclaimed activity.
Three legal requirements for an enforceable disclaimer
Disclaimers can take many forms, including email, copyright or no responsibility disclaimers. Whatever form it takes, you must prove on a balance of probabilities that your disclaimer is valid. Here is what you must prove.
You need a signed agreement
Your disclaimer must form part of an agreement between you and the participant to prove that the participant accepted the terms. You can reach a consensus through a signature, by conduct, or through a duly authorised agent. We recommend always getting a personal signature from each adult participant before the activity begins. This is because courts interpret tacit or quasi-mutual consent in a narrow way, so relying on conduct alone makes it harder to prove consensus.
A signed agreement is your best evidence of consensus.
You must display it prominently
Your disclaimer must come to the participant’s attention in a reasonable way. Reasonable in this case means a standalone document with a clear heading that identifies it as a disclaimer and indemnity. You have to keep it separate from pricing, itineraries, booking confirmations, and general terms.
Where an activity involves serious injury or death, you cannot post your disclaimer on a general sign.
Your disclaimer must comply with the Consumer Protection Act
If the participant is a consumer under the CPA and the activity takes place in South Africa, the CPA applies. The participant must have enough time to read and understand the disclaimer before paying in full or taking part in the activity. Your disclaimer must also be written in plain language and understandable to the participant.
Most transactions in South Africa fall under the CPA. Check that your disclaimer meets its requirements.
It is worth noting the CPA’s requirements regarding disclaimers for activities that may result in serious injury or death. In this instance, you must highlight the nature of the risk, and the participant must initial each provision acknowledging the risk presented.
How courts interpret disclaimers
In ambiguous cases, Courts interpret disclaimers restrictively. If a clause carries more than one meaning, the interpretation least favourable to you as the supplier applies. This includes general exclusions of liability. For example, in Tourvest v Murti, the Court held that the clause “… whatsoever nature…” did not exclude liability for an employee’s negligent driving. So, if you want to exclude liability for a specific type of harm, name the actual risks clearly.
There will also be an issue if your disclaimer does not comply with public policy. Even if it meets all three requirements, it is unenforceable if it conflicts with the values in the Constitution, such as dignity, fairness, and access to justice. For example, you cannot unfairly limit a person’s access to justice (by allowing someone else to sign the disclaimer on their behalf), as such a limitation can be voided.
Getting the signing process right
A defective signing process makes a well-drafted disclaimer worthless. So to ensure your disclaimer can be enforced, follow these steps.
- Present the disclaimer in a plain language standalone document. Take care to provide it in a language the participant understands.
- Have an employee walk the participant through it.
- Sign it at the earliest opportunity, before full payment or participation.
- Do not attach it to a booking confirmation, invoice, or itinerary.
- Give each adult participant their own copy and enough time to read, understand, and ask questions.
Keep all signed originals on file because they serve as proof of consensus, and you bear the onus of proving enforceability.
Actions you can take
- Update your current one by asking us to review it.
- Have enforceable disclaimers by asking us to draft one for you.
- Know how the courts interpret a disclaimer by reading Tourvest v Murti.
