Disclaimers in a nutshell: They do work, and can ward off negligent misstatement: Hedley Byrne v Heller, reaffirmed recently in Walsh v Jones Lang Lasalle.
The burden of proof, so the philosophers say, is on the person making the existential claim. It is not for a defendant to prove a negative.
But do not let that stop your counsel trying.
If you distrust epistemology — if, as many lawyers do, you just find unpunctuated silence uncomfortable — you can always slip in a disclaimer. Nothing gladdens an attorney’s heart more than one of these. Where a client sees such a page of tightly leaded seven-point font as mere texture, his advisor will behold a thing of power, beauty, and precision impossible to articulate to the laity. A good disclaimer bootstraps itself off the page and into three-dimensions, arcing gracefully into imagined geometries of space-time, disclaiming even itself into nothingness.
To disclaim is definitively to say, for the eternal record, what you are not saying.
Nosferatu, or the Unsaid
Lawyers have a primal fear of the unsaid. They see it as not a dark, formless void but an uncharted black ocean stretching to a distant horizon, teeming with whirlpools, leviathans, madmen and little old ladies; a brain-addling cosmos of unfathomable dimension: brimming with implied covenants, constructive knowledge, unarticulated warranties, unspoken waivers, ineffable courses of prior dealing, deemed joint ventures, fiduciary duties; shot through with open-ended equitable indemnities for any kind of stupidity in which your counterparty might, while carrying out its end of your bargain, indulge.
Any of these forensic succubi may spark and crackle afire without warning should your magic incantations not ward them off. Just as vampire hunters have their wooden stakes, potions of garlic and vials of holy water, we lawyers have our disclaimers: they are our shield and sword, universally effective against this terrifying void of nothingness. The safest way, so the thinking goes, to ensure something is not on the record is, fairly and squarely, to put it there, in terms as unequivocal, comprehensive and impenetrable as you can make them.
Thus, a disclaimer fills this unspoken septic hinterland with calming doggerel intended to dampen, insulate and inoculate those empty spaces, like so many polystyrene chips in a mail-order carton.
In penning a disclaimer, spurn whatever commitment you have to brevity. Stuff your prose with passives, redundancies, jargon and double negatives. Repeat yourself, repeat yourself again and, for the avoidance of doubt, repeat yourself. The less you say and the more elaborate the constructions you use to say it, the better. Put it in seven point, the wrong font, margins skewiff at the back of the document, and label it “Important information that you must read”. BREAK INTO LONG TRACTS OF BOLD CAPITALS FOR NO OBVIOUS REASON. LABEL THEM A NOTICE TO NEW HAMPSHIRE RESIDENTS.
What if it is not enough?
The sky might, yet, fall in on your head. What if the very act of disclaiming of itself invokes some new, un-thought of, liability? Could clever words inadvertently summon from across the Styx some new demonic imp to haunt your dreams and ply your client with indeterminate liability?
The epistemologists will tell you this is impossible to rule out in theory, however absurd it might seem in practice: nego, ergo advocatum sum, as Descartes declined to put it. But you can always try, by adding a disclaimer to the bottom of your disclaimer:
- By reading this disclaimer (as amended or varied from time to time the “disclaimer”) you unreservedly accept it in full. We reserve the right to amend, extend, modify or amplify any part of the aforesaid disclaimer without notice to you or any person at any time, and your continued reliance, and/or your failure to rely, upon this disclaimer will be deemed to be acceptance of any such modification. This disclaimer should not be construed as legal advice. Whilst we have taken reasonable steps to ensure it is an accurate, complete and comprehensive dereliction of responsibility for any and all of the matters herein mentioned from time to time (including, for the avoidance of doubt, the existence, comprehensiveness or effectiveness of the disclaimer itself), to the maximum extent permitted by applicable law we exclude all representations, warranties and assertions (implied or overt) as to its completeness, fairness, accuracy, effectiveness, quality, fitness for purpose and/or the care or skill employed in its composition, and we accept no liability whatsoever arising from its deemed, constructive or alleged failure to be complete, accurate or effective.
- NB: I made this up for satirical purposes, but as ever, fact is stranger that fiction. Californian law recognises an equitable indemnity.
- Be honest: it is usually salutary and insincere.
- I’m messing with you now, I know.