Do disclaimers need to be capitalized?

Question

Are disclaimers of warranty, liability, and the like legally required to be in all-caps? For example, the "disclaimer of warranty" section from the GNU GPL:

THERE IS NO WARRANTY FOR THE PROGRAM, TO THE EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT WHEN OTHERWISE STATED IN WRITING THE COPYRIGHT HOLDERS AND/OR OTHER PARTIES PROVIDE THE PROGRAM “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAM IS WITH YOU. SHOULD THE PROGRAM PROVE DEFECTIVE, YOU ASSUME THE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.

On the other hand, Stack Exchange's disclaimer of warranty uses normal casing (well, normal for legal documents):

Stack Exchange has no special relationship with or fiduciary duty to Subscriber. Subscriber acknowledges that Stack Exchange has no control over, and no duty to take any action regarding: which users gains access to the Network; which Content Subscriber accesses via the Network; what effects the Content may have on Subscriber; how...

Answer 1

Do they have to use all caps? Well, no. It's just that companies feel that's the easiest way to make the text "conspicuous" which is required by the Uniform Commercial Code explicitly in § 2-316. Exclusion or Modification of Warranties.

(2)Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that "There are no warranties which extend beyond the description on the face hereof."

The term "conspicuous" is defined in § 1-201. General Definitions.

"Conspicuous", with reference to a term, means so written, displayed, or presented that a reasonable person against which it is to operate ought to have noticed it. Whether a term is "conspicuous" or not is a decision for the court. Conspicuous terms include the following: (A) a heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same or lesser size; and (B) language in the body of a record or display in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language.

So you could make the text all bold and italic. You could make the font color purple. It's just that most companies use the caps lock key, whatever their individual reasons may be.

I'll also note that this is a commercial code and these rules are found under Article 2 - Sales. So you'll only see this requirement taking effect in terms/disclaimers for companies which actually let end-users engage in commercial activity (they're actually selling something). Any site which doesn't facilitate commercial activity will likely be using a warranty disclaimer as a note of "hey, this is a free site, so no you don't get a warranty or legal expectation of service of any sort."

Answer 2

Students of the English legal system will all have heard of Alfred Denning (later Lord Denning), a prominent English judge in the twentieth century who really took issue with contract terms that purported to exclude liability under every circumstance.

In a famous case in 1956, (J Spurling Ltd v. Bradshaw), Lord Denning came up with his famous "red hand rule",

I quite agree that the more unreasonable a clause is, the greater the notice which must be given of it. Some clauses which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient.

This did not follow from any English statute, but Denning found this to be part of the common law; therefore other jurisdictions using the common law might be persuaded of similar logic. So if someone is drafting a clause that excludes their liability in very general terms, it is wise to ensure it is brought prominently to the notice of the other party. An easy way to do that is to print it all in capitals.

Answer 3

There is a history of some organizational and US government publications mandating all capital letters for certain terms in the publication.

1. Here is a section of the Minnesota elections process

   Section 43 remove the requirements that voter instructions on a primary ballot be in all capital letters

2. The Journal of Dairy Science requires it for sectional information.

3. Section 5.47(3)(i) of the Dept. of the Treasury's rules on Subordinated debt issued by a national bank specifies:

   (3) Disclosure requirements. (i) A national bank must disclose clearly on the face of any subordinated debt note the following language in all capital letters

4. I can personally relate that I have seen promotional and content rules that exhibit all-capital-letters printing in a telling pattern: the contest rules will have a block that prints the state-by-state exemptions and local laws. This block almost always has some of the state's information printed in all-capitals, whereas others are mixed or regular use of capitals.

I think #3 is really exemplifying of the trend, since it is both federal, and well-aged. We can see that Minnesota used a similar font for much of their history, until recently.

#4 is also very telling of how certain states have created local laws around it.

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So I would say that the legality of capitalizing disclaimer / disclosure information is relative to the body that has jurisdiction of the related field of work.