Why don’t companies just say “you can’t sue us” in their TOS?
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There are limits to what can be legally enforced. Just because someone clicks through a TOS doesn’t mean anything goes, you can’t be made to give up your right to sue them. That said they can often force people to go through arbitration which is quicker and less expensive than standard lawsuits, and so most TOS will have such a clause in them.
They do. A lot of terms and conditions say you waive your right to take a matter to a court of law and instead use arbitration. Good example of that is a current case against Uber that is being fought back by Uber using this exact clause.
They do. Uber has a clause in their subscription that waives your right to sue. As do many, many others.
They do. That is what ‘binding arbitration’ is. At least they THINK that is what they want until what would be a standard class action turns into x,000 arbitrations that they are now bound by the contract they wrote despite the kicking and screaming that it is going to cost them money
There’s a thing called **”Unconscionability”** in contract law that means a clause or section is so wildly unfair to one side that it can’t possibly be allowed to stand, and “you can’t sue us” neatly falls in that category.
Waiver of liability, indemnity, void of warranty, governing law, arbitration… Lot of ways to dodge it
Because if a contract is comically one-sided, a court can rule that it’s unconscionable and void it, even if both parties willfully signed it.
So if a company wants to discourage people from suing them, they’ll have to offer some kind of alternative or something that at least seems fair from a legal perspective.
I’m not a lawyer, so apologies if I don’t have all of the details completely right:
There is a whole field of law called “Contract Law”. Contract law has rules around what contracts are valid and which are invalid. Contract Law varies depending on where you live but generally, Contract Law dictates that a contract that says, “You can’t sue me” is not valid.
There are various aspects of Contract Law that would make a “You can’t sue me” clause invalid but the most direct ones are a combination of Exculpatory Clause rules and Public Policy rules. Basically, Exculpatory Clause rules say you can only waive so much responsibility. Public Policy rules states a contract cannot violate the broader laws of the land (For example, you can’t sign a contract forcing someone to do something illegal.) Completely waiving the right to sue violates the general legal principles of right to pursue legal remedies and thus violates the Public Policy rule of Contract Law.
Contract Law in some places allows for forced arbitration (a third party chooses the remedy) in a contract and in some jurisdictions this is a legal replacement for some types of lawsuits.
You can’t just put ANYTHING in a contract. Basically, contractual agreements can’t nullify the concept of criminality. Therefore, it would not be an enforceable clause. This is why if you sign a liability waiver for something and end up getting hurt as a result of a company’s negligence, the company could still theoretically be liable.
There are certain limited terms where they can say that. And most companies try to push that further than they are supposed to betting that it’s worth it to break the law and deter people from even trying to sue than to correctly write the contract. Tldr it’s illegal to blanketly write “we are unsue-able” in a contract.
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