Philip has been in training for several months and now plans to run in the school-sponsored, 10-mile, fun-run mini-marathon. He completes and signs an entry blank which contains the statement, "I hereby agree to hold the sponsors harmless for any injury sustained as a result of participation in this event no matter how such injury may be caused."
a. What is the legal term for this clause in the agreement?
b. Is the clause valid and legally enforceable? Explain its legal effect.
a . This is an exculpatory clause.
b. This type of clause is generally looked upon with disfavor since there is a policy to discourage overreaching and to assure that wrongdoers will pay the damages caused by their tortious conduct. However, Philip should not automatically assume that the clause will not be upheld, because the policy of freedom of contract is also a factor in determining the validity of contractual clauses exempting a party from liability for his tortious conduct, and thus not all such clauses are held to be against public policy. Exculpatory clauses relieving a party from harm caused intentionally or recklessly are unenforceable as violating public policy; however, clauses excusing a party from liability for harm caused by negligent conduct undergo careful scrutiny by the courts. To be upheld, the clause should be conspicuous and clearly written. If one party's superior bargaining position has enabled him to impose an exculpatory clause upon the other party, the courts are inclined to nullify the provision. In this case, the fun run is not a necessary or required activity, so the clause will probably not be viewed as being imposed by a stronger party.
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