Key Takeaways

  • A release waiver is a legal document that allows one party to relinquish or transfer rights, often to limit liability or resolve disputes.
  • Waivers are voluntary agreements to give up specific rights, while releases transfer liabilities or obligations from one party to another.
  • Release waivers are common in high-risk activities, sports, medical treatment, and contract situations.
  • A well-drafted release waiver should include clear language, acknowledgment of risks, the scope of activities covered, and signature lines for all parties.
  • The enforceability of release waivers depends on clarity, compliance with state laws, and the specific circumstances in which they are used.
  • There are different types of release waivers, each suited for specific situations such as sports, business, property transfers, and debt settlements.
  • UpCounsel can connect you with experienced attorneys for drafting or reviewing release waivers.

Waiver and release refer to the waiving of rights or privileges and the release of a party from their obligations or rights.

What Is a Waiver?

A waiver relinquishes a party's rights in a certain circumstance. When going skydiving, a person might sign a waiver that gives up their right to sue the skydiving company if something goes wrong. Waivers are signed intentionally, so the party giving up their rights should always know exactly what they're relinquishing.

Waiving rights are similar to legal forfeiture, but forfeiture is the result of wrongdoing, whereas waivers are voluntary.

When writing a contract, a waiver may be used to prevent a party from enforcing a right in the contract.

Constitutional rights can sometimes be waived in the court system. For instance, sometimes criminals will actually waive their right to counsel. Waivers offer legal permission to change the rules in a specific instance.

Intellectual property (IP) rights can be waived. If an independent contractor writes for a web content company, they might waive their IP rights to their work so that the company can use it as it pleases without fear of legal action.

When treated in a hospital for a severe car accident, the injured party may be asked to sign a waiver so that the hospital cannot be held liable if the person dies while the doctors are trying to save their life.

Professional football players sign waivers for certain rights that cause them to belong to a particular team for the duration of their contract.

What Is a Release?

A release is a legal document that relieves a party from certain:

  • Liabilities
  • Responsibilities
  • Obligations

There are many ways that a release can be used. In some cases, borrowers can be released from their obligation to repay a loan. This is called a release from debt. When a home buyer cannot pay their mortgage, some banks will allow a short sale with a release so that the home can be sold for whatever it is worth, and the bank cannot pursue the previous homeowner for any debt that isn't covered through the sale.

Releases can also be used when ownership is changing hands. Say a person is selling their car. The buyer of the used car will take over all of the rights that are included in the ownership of the vehicle. When the title is transferred, the previous owner releases their rights to that vehicle.

The word "release" also refers to the freeing of a prisoner. This concept can help paint a picture of how releases work in ownership, finances, and legal situations. If a debt is considered a type of confinement, a release of debt is freeing the debtor from their financial prison.

Common Types of Release Waivers

Release waivers are used in a variety of settings to protect organizations and individuals from legal claims. Some of the most common types include:

  • Activity or Sports Waivers: Used by organizations hosting physical or recreational activities, such as gyms, sports leagues, adventure parks, and fitness studios, to protect against claims of injury.
  • Event Waivers: Required for participation in races, tournaments, competitions, or community events, often including both minors and adults.
  • Medical Treatment Waivers: Used by healthcare providers when administering certain treatments, therapies, or procedures, especially those that carry risk.
  • Property Release Waivers: Used during the sale, lease, or transfer of property to waive rights or claims related to the condition or use of the property.
  • Debt Settlement Releases: Signed during debt resolution, such as a short sale or debt negotiation, to release a borrower from further obligations.
  • Employee Waivers: Used during employment separation or settlement agreements, releasing the employer from future claims.

Each type of release waiver should be tailored to the situation and compliant with relevant laws to ensure enforceability.

Release Versus Waiver

The main difference between releases and waivers is the transferring of ownership. When rights are released, they are transferred to another party. When rights are waived, they are gone altogether.

If intellectual property rights are waived, the IP can be used by any other party that has access to it. When the IP rights are released, they are released to another person or company which now holds those rights, so the IP cannot be used by anyone.

In the case of the skydiver, they might be asked to sign a release form rather than a waiver. The release form shifts the responsibility for any injuries or otherwise away from the skydiving company and onto the skydiver. This is called a release of liability form.

Key Elements of an Effective Release Waiver

A well-drafted release waiver should contain several essential elements to be legally valid and enforceable:

  • Clear Language: The waiver must use straightforward, unambiguous wording that explains exactly what rights are being waived or released.
  • Acknowledgment of Risks: The party signing should be informed of any risks associated with the activity or transaction and acknowledge understanding and acceptance of those risks.
  • Scope of Release: The waiver should specify the activities, events, or transactions covered and clearly state the period it applies to.
  • Identification of Parties: Clearly list all parties involved, including the person or entity granting the release and the one receiving it.
  • Voluntary Agreement: The waiver should state that it is entered into voluntarily, without coercion or undue influence.
  • Signature and Date: Both parties must sign and date the waiver for it to be legally binding.
  • Parental or Guardian Consent: For minors, a parent or legal guardian must sign the waiver.

It is crucial to review and update waivers regularly to reflect changes in laws and circumstances.

What Is a Release of Liability?

Release of liability is similar to the release of ownership or rights. Companies that run inherently dangerous activities, like marathons or rock climbing, use release of liability forms. When registering for a marathon, runners will likely be required to sign a release of liability document that says they will retain liability for themselves if they are hurt in any way while participating in the event and will not hold the race organizers or sponsors liable.

Waivers and releases used for risky events usually include a section where the participant is informed of the risks involved in the activity and must acknowledge those risks.

A release of liability is sometimes called a:

  • Release Form
  • Release of Liability Form
  • Waiver
  • Liability Waiver
  • Waiver of Liability

Enforceability and Limitations of Release Waivers

While release waivers are powerful tools for limiting liability, their enforceability is not guaranteed in all situations. Courts consider several factors, including:

  • Clarity and Scope: Waivers that are vague, overly broad, or unclear may be deemed unenforceable.
  • State Laws: The validity of release waivers varies by jurisdiction. Some states prohibit waivers for certain activities or do not recognize them for gross negligence or intentional harm.
  • Fairness and Public Policy: Courts may refuse to enforce a waiver if it is deemed unfair, unconscionable, or against public policy.
  • Notice and Understanding: If the signing party was not properly informed or did not understand the waiver, it may be challenged in court.

Organizations should always consult an attorney to ensure waivers comply with state laws and are properly drafted for the intended context.

Sample Release Waiver Clauses and Templates

Many organizations use standardized release waiver templates as a starting point, customizing them to their specific needs. Typical clauses in a release waiver may include:

  • Description of Activities: Listing all activities or situations covered by the waiver.
  • Assumption of Risk: A statement that the participant acknowledges and accepts the risks involved.
  • Release of Claims: A clause releasing the organization or individual from liability for specific damages or injuries.
  • Indemnification: A statement requiring the participant to indemnify the organization against certain claims.
  • Severability: Ensures the waiver remains valid even if one part is found unenforceable.
  • Governing Law: Specifies which state’s laws govern the waiver.

Sample templates can often be found through reputable legal sources, but it is important to adapt them to your situation and jurisdiction. When in doubt, consult with a legal professional to ensure your release waiver is comprehensive and effective.

Frequently Asked Questions

1. What is the main difference between a waiver and a release?

A waiver involves voluntarily giving up a right, while a release transfers liabilities or obligations from one party to another, often as part of a settlement or contract.

2. Are release waivers legally enforceable?

Release waivers are generally enforceable if they are clear, specific, and comply with state laws. However, waivers may not be upheld if they are ambiguous, unconscionable, or cover gross negligence.

3. Can minors sign release waivers?

Minors generally cannot sign enforceable waivers on their own; a parent or legal guardian must sign on their behalf for the waiver to be valid.

4. When should I use a release waiver?

Use a release waiver whenever you want to limit liability for potentially risky activities, transfer property, settle debts, or resolve employment or business disputes.

5. What should I include in a release waiver?

A release waiver should include clear language, a description of the activities, acknowledgment of risks, identification of parties, voluntary agreement, and signature lines. Legal review is recommended.

If you need help with a waiver and release, you can post your job on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.