whatchathink....don't double post questions. This one is also posted in the structural forum. It is more appropriate for this forum.
I had the same question there as hokie66 has here.
A contract waiver, as you explained in the other forum is a waiver of signing a contract. That, in and of itself, is a contract of sorts. One that makes no sense. A waiver is usually a specific provision or clause within a contract, not the negation or waiving of the whole contract.
Why would you waive the signing of a contract? You have no potential of equity with the other party and you have no protections for yourself, such as limitation of liability, indemnification, ownership of documents and dozens of other contractual clauses that can protect you.
If I'm understanding your description of a contract waiver, I can't imagine that any professional liability insurance carrier would allow such.
Maybe you could explain further as to its purpose.
Also...I have red flagged the posting in "structural" as it doesn't belong there.
I used a waiver frequently at a engineering firm i used to work for (we called it a contract waiver). it was used if the project scope was small with limited libility. Because California requires a contract, all work MUST (by law) have a contract unless the client agrees in writing that a contract is not required. A typical use would be small scale inspection services.
Why would I waive a contract? I guess the silly answer is i'm not that worried about it. maybe i should be.
More information for the contract and waiver requirement can be found here:
Whatchathink...Mike is exactly right. Liability has nothing to do with fee level.
Even a simple services authorization form would give you the contractural protection you need. It doesn't have to be some long and laborious contract. My form, including where I outline the general scope of work, the expected fees and the client contact information is only two pages, but it has MY contract terms and general conditions. About 90 percent of my work is done this way, with fee levels ranging from $1000 to many times that.
Under the California law, if you used the waiver, the client could then sue you for malpractice if something went wrong, and you would have no contractual defenses...for instance, indemnification for attorney's fees or limitation of liability. What if you do the work and then don't get paid? You have no contractual basis for collection.
I would use a simplified contract rather than a contract waiver unless such waiver provided clear indemnification and a waiver of legal action, including arbitration and mediation, in the event of an issue.
I appreciate your advice and will seriously consider it. . . in fact, I'm nearly done considering it now. I'm pretty sure I will abandon the waiver for future projects and go with a short form contract.
