Appreciate The Risks You Are Assuming In Your Contract

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Regardless of the type of contract you are entering into, there are risks you will be assuming.

February 10, 2020
David Adelstein - Florida Construction Legal Updates

APPRECIATE THE RISKS YOU ARE ASSUMING IN YOUR CONTRACT. Otherwise, those risks will come back and bite you in the butt. This language is not capitalized for naught. Regardless of the type of contract you are entering into, there are risks you will be assuming. You need to appreciate those risks because there may be insurance you can obtain to cover that risk.

For instance, exculpatory provisions (or get-out-of-jail provisions) in contracts are enforceable if they are unambiguous. “Such provisions are deemed to be unambiguous and enforceable when the language unequivocally demonstrates a clear and understandable intention for the defendant to be relieved from liability such that an ordinary and knowledgeable person will know what he or she is contracting away.” Pillay v. Public Storage, Inc., 44 Fla.L.Weekly D2744c (Fla. 4th DCA 2019).

An example of an exculpatory provision can be found in the public storage rental contract found in Pillay that read:

(1) ALL PERSONAL PROPERTY IS STORED BY OCCUPANT AT OCCUPANT’S SOLE RISK.

(2) Owner and Owner’s agents . . . will not be responsible for, and Tenant releases Owner and Owner’s agents from any responsibility for, any loss, liability, claim, expense, damage to property . . . including without limitation any Loss arising from the active or passive acts, omission or negligence of Owner or Owner’s agents.

Mr. Adelstein may be contacted at dma@kirwinnorris.com



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