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Old 05-09-2013
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Re: Am I out of line on my boat offer?

You're right, I can put all kinds of funky stuff in a contract, and a court might ignore it. But, usually, courts only do that when there is willful, wanton action or gross negligence. If you and I have a contract that says I'm not liable for any damage to your boat and I go for a ride and hit an unknown, submerged object and wind up sinking your boat, the court probably won't find me liable. By contrast, if I take a chainsaw to your boat, the court is going to ignore the liability limitation/waiver language. Similarly, if you're a soccer camp and my kid breaks his leg during a game at your camp, and assuming we have a contract that says you aren't liable for any injuries, you probably won't be liable for the broken leg. By contrast, despite the contract, if one of your employees uses the field one night for target practice with his wrist rocket and leaves shattered beer bottles all over the field, and then my kid falls and gets severe cuts, etc., you're probably going to be liable. The courts typically try to draw a distinction between what the parties knowingly contracted for, and stuff that's so over-the-top that nobody would have agreed to it.

In the end, how you choose to structure the contract is up to you. You have to be comfortable with it, and you have to understand what you're getting/not getting out of the contract. For me, I'm with James; there are advantages to having that stuff called out in your contract, and I'd prefer to have it in there. If I put in something that says "seller represents and warrants that the seller has clear title to the boat" and it turns out that there's a lien against the boat, that helps my fraud case, so I think its wise to have it in there. The same would be true for the "normal operating conditions" clause, especially since there is an exceptions area.
- Jim
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