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In a disclaimer or a Terms of Use document, there are often pages and pages of statements like "We are not liable if you do this", "We are not liable if you do this", "We will not give more than $50 if this happens", etc.

The sentence "You can't sue me" probably goes against a fundamental right that you can not forfeit, but why can't they simply put "By agreeing, you forfeit your right to make any claims against this company" or, more formal, "We are not liable for anything, related to the product you bought, or otherwise" in their disclaimer?

4

What prevents companies form putting “You can't sue me” in their disclaimer?

The fact that it makes the contract void at common law.

Parties to a contract cannot include a clause preventing recourse to a court of law in the event of a dispute on the grounds of public policy. After all, the courts are open to all comers. It is common to find an arbitration clause in some contracts [or other ADR like mediation] ... This is acceptable as long as the right of appeal, or the right of parties to state a case for the opinion of the court, is allowed. If not, the clause will fail for breach of public policy.

Australian Business Law 2002 Section 5-0835

AFAIK this is the common law in the United States also. It is worth noting that nothing in Southland Corp. v. Keating, 465 U.S. 1 (1984) changes this common law position; it simply requires that the parties must abide by the terms of the contract that requires arbitration to resolve disputes. Following that, a dissatisfied party could appeal the arbitration to the courts; they may have little chance of success but the important point is that the courts are not legally excluded (just practically excluded unless you have very deep pockets).

  • I'd be very hesitant to say the "common law" voids contracts as a matter of course. – Pat W. Mar 18 '16 at 21:03
  • @PatW.So would I, that's why I didn't. – Dale M Jan 30 '18 at 3:50
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Nothing prevents firms from putting clauses like that in the disclaimer. If you're talking about goods (rather than services), much contract formation is governed by the Uniform Commercial Code, which 49 states have adopted (and which Louisiana has adopted part).

However, the real question relates to whether that kind of language will be enforceable in court. A common way to attempt to avoid litigation is to insert a clause that requires arbitration of disputes (instead of litigation). The Supreme Court upheld the Federal Arbitration Act (FAA) in Southland Corp. v. Keating, 465 U.S. 1 (1984), so this can be successful.

Contracts that have class-action arbitration provisions are a little dicier, but in AT&T Mobility, LLC v. Conception, 563 US 333 (2011) , the court held the FAA preempts state laws that disallow class arbitration.

  • Of course, arbitration agreements tend to favor the contract-maker... – JAB Jan 22 '18 at 19:37
  • So basically saying that you need to arbitrage through ABC is an unclear way of saying you can't sue me? – user4951 Jan 30 '18 at 4:03

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