There are several concepts that intersect this question: simple negligence, gross negligence, ownership and the precedence by which various legal concepts get applied.
In short, it depends on what is being disclaimed, to whom, why, and what sort of recourse is claimed. Their value will vary greatly depending on the situation. Here are some thoughts. - You cannot claim to own that which you do not. Making the claim does not change the fact. However, it could in some circumstances play a role in an adverse possession process. Also, if you do own something and you say you are giving it away, and someone acts on that, then maybe you gave it away. Sometimes the things that are sent to you become yours and sometimes they don't. Sometimes the things you send are still your legal property and sometimes they are not. Typically, the claims on a mail message have little or nothing to do with issues of ownership of either the message or the information in it. Of much greater significance will be the role of the sender, and what kinds of boundaries are crossed. - Contracts involve an offer and an acceptance. However, a contract can also become real, if over time both parties behave as though it exists. The rules governing implied contracts vary from one place to another and from one topic to another. By statute, some implied contracts are explicitly forbidden, while others are explicitly supported. One side to a contract cannot both make the offer and claim that it was accepted. It takes two to tango, regardless of what your claim or disclaimer says. - You can claim to not be responsible in a situation where you are making it clear that someone else is assuming a risk, provided that the risk is not assigned to you by statute, and you are not grossly negligent. You can often get out of simple negligence with a warning or disclaimer. - If you are grossly negligent, all the disclaimers in the world will not change that. In fact, they may serve to make your situation worse by highlighting that you were well aware of the risks to which you were exposing someone else. - The difference between simple negligence and gross negligence is what a judge or jury decides it is in a particular situation. You pays your money and you takes your chances. So maybe your disclaimer will help make your case if its a simple negligence situation, and then again it may send you up the river if it is a gross negligence situation. All of which means that the degree to which others are offended by your disclaimer will matter. - Lawyers are generally not well loved. In many situations, decorating your image with legalese will not have a positive effect on it. - As perverse and idiotic as it sounds, sometimes you can get away with claiming not to be doing what you are doing, simply by saying it. For example, if you say a solicitation to invest is only a prospectus and not a solicitation to invest, you have told a lie and it is altogether legal. But, in other situations, your claims may not change the legal substance of what is going on. Check with your lawyers to find out if the lie you want to tell will let you get away with contrary behavior. Now as to whether you should even if you find you can, well that is another question. Some accountants now wish that they hadn't made quite so much of a habit of doing what they thought they could legally get away with. As Jacob Marley pointed out to his former business associate, bad Karma accumulates. -----Original Message----- From: David N. Precht [mailto:[EMAIL PROTECTED]] Sent: Thursday, December 05, 2002 8:27 PM To: Exchange Discussions Subject: RE: Disclaimers Ask your Legal and Compliance Dept. I would love to hear what they say. -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] On Behalf Of Mark Dewell Sent: Thursday, December 05, 2002 12:03 To: Exchange Discussions Subject: Disclaimers A recurring topic seems to be about adding disclaimers to outgoing messages and I have seem various recommendations about software to do this. But I would like to know how effective are disclaimers? Do they actually have any legal standing? _________________________________________________________________ List posting FAQ: http://www.swinc.com/resource/exch_faq.htm Archives: http://www.swynk.com/sitesearch/search.asp To unsubscribe: mailto:[EMAIL PROTECTED] Exchange List admin: [EMAIL PROTECTED] _________________________________________________________________ List posting FAQ: http://www.swinc.com/resource/exch_faq.htm Archives: http://www.swynk.com/sitesearch/search.asp To unsubscribe: mailto:[EMAIL PROTECTED] Exchange List admin: [EMAIL PROTECTED] _________________________________________________________________ List posting FAQ: http://www.swinc.com/resource/exch_faq.htm Archives: http://www.swynk.com/sitesearch/search.asp To unsubscribe: mailto:[EMAIL PROTECTED] Exchange List admin: [EMAIL PROTECTED]
