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Waivers

WAIVER, RELEASE, AND DISCLAIMER? Are they effective in the transfer of risk?

A waiver and release are very similar and generally have the same effect in a contract. Both attempt to relieve one party to an agreement from a responsibility or obligation that it may otherwise have.

With a waiver, one party agrees to voluntarily give up a right that it has (i.e. the right is waived).

A release means that one party is relieving the other from an obligation or responsibility. Both are often used when there is some risk associated with an activity that could appropriately be assumed by the individual undertaking that activity.  For example, an employee agrees to waive his/her right to claim against an institution and/or release the institution from any claims in exchange for permission to use the gym or shop for their own personal use in the evening.  It is possible that injury could result for reasons that are not the fault of the institution and it is reasonable to expect the employee to assume the responsibility and risk for these activities.

A disclaimer is used by a party seeking to be relieved of a responsibility or obligation related to the subject of the disclaimer.  A common example would be with respect to the donation of used sports equipment to a sports club.  The institution may disclaim any warranty of merchantability or fitness of purpose (obligations which usually exist when distributing or supplying a product).  Disclaimers are often used in conjunction with a waiver or release.  

Generally waivers can be enforced where it is demonstrated that the individual understood the consequences of a waiver and chose to proceed with the activity (and the waiver) in any event. This supports the concept of informed consent – if the risks are understood and assumed by the individual providing the waiver, others should be able to rely on the waiver. PDFWaiver Toolkit

It is critical that the person(s) responsible for ensuring that the release/waiver is signed, clearly communicates to the releasor that by signing the release their rights to sue are waived as are any and all claims against VIU for anything that may happen to them during the activity.

It is also important to recognize that waivers/releases/disclaimers will not generally be enforceable where the loss arises from gross negligence or willful misconduct of the other party.

Even if a waiver/release cannot be enforced at law, there is often value in their inclusion in an agreement.  It will alert the party granting the waiver/release that possible risks are associated and helps demonstrate thoughtful consideration of the undertaking.

It is important to note that a parent or guardian cannot waive the rights of a minor (although the parent or guardian can waive their own right to claim).