Mark Pestronk
Q: I have a question about signatures on disclaimers. Your model retail disclaimer that I can download says, just above the signature line, "EVERY FAMILY OR PARTY MEMBER 18 AND OVER MUST SIGN." I understand that it protects us legally if everyone signs a copy of the disclaimer, but we are encountering resistance in collecting signatures from the family members and friends of the person who our agency is dealing with. So I have to ask whether there's any alternative. Can't one member of the party sign on behalf of all members? Finally, is a signature really necessary at all? Can't we just post our disclaimer online like the major OTAs do? Do you need a signature for each trip, or is one sufficient? If one is sufficient, how many years is it good for?
A: A disclaimer is a kind of contract. One person's signature cannot legally bind another person to a contract unless the signer is authorized to sign as agent for the nonsigner.
The trouble is that, if you have to sue the nonsigner for a debt or to enforce the disclaimer, the nonsigner will probably say that the signer was not authorized to sign for them. Unless you have proof to the contrary, the judge will dismiss your case. That's why I recommend that all adults sign.
There is an alternative, but it's a second-best choice.
You can require just the leader or payer to sign on behalf of the traveling party, and you can add a clause stating that the person signing indemnifies you against claims by other members of the party.
For example, you can add a sentence at the end, just above the signature line, stating, "You hereby represent and warrant that you are authorized to sign on behalf of all members of your traveling party, and you agree to indemnify, hold harmless and defend us against all claims by said members arising out of or related to any matter covered by this agreement."
With such a clause, if your agency gets sued by a member of the traveling party for something for which you disclaim responsibility in the agreement, and the plaintiff says, "I never agreed to that," you can turn around and make the signer responsible for whatever you may owe the nonsigner.
As to whether a signature is really necessary at all, keep in mind that a signature is not a magical token that makes a contract binding but rather simply evidence that the signer agreed. You could certainly have other kinds of evidence, such as an exchange of emails or a checked box on an online or offline form. However, a signature is always best because it is the clearest indication of assent.
Unless your disclaimer applies specifically to a single trip by, for example, incorporating the trip's itinerary or pricing in it, you certainly do not need a separate signature for each trip. You can keep one on file, and there is no limit on how long it will remain valid.