Can you really waive 1542 in California?
December 4, 2006 6:14 PM Subscribe
California Law Filter: how binding is a Section 1542 Waiver?
I'm wondering if anybody has real world experience with enforcing these types of releases. I know they are commonly used, but I do not know how well they really hold up in court.
The release says: "I expressly waive Section 1542 of the California Civil Code, which provides that: 'A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release which if known by him must have materially affected his settlement with the debtor.' "
Further, it states: " I have not relied on any representations or statements made by the other Party and I have consulted with independent counsel prior to signing."
At the time of signing, the releasing party knew he had a distinct claim and drafted a carve-out for that claim but ultimately agreed to, and knowingly signed a final draft that did not include the carve-out. There is no suggestion of duress and there was real consideration paid.
What is the likelihood the judge will actually enforce the release? Also, do you think this is a pure question of law if the release is found to be unambiguous?
I'm wondering if anybody has real world experience with enforcing these types of releases. I know they are commonly used, but I do not know how well they really hold up in court.
The release says: "I expressly waive Section 1542 of the California Civil Code, which provides that: 'A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release which if known by him must have materially affected his settlement with the debtor.' "
Further, it states: " I have not relied on any representations or statements made by the other Party and I have consulted with independent counsel prior to signing."
At the time of signing, the releasing party knew he had a distinct claim and drafted a carve-out for that claim but ultimately agreed to, and knowingly signed a final draft that did not include the carve-out. There is no suggestion of duress and there was real consideration paid.
What is the likelihood the judge will actually enforce the release? Also, do you think this is a pure question of law if the release is found to be unambiguous?
I hope I'm wrong, but I think your question is way too specific to get a good answer from the lawyers here. You're asking a question that requires actual legal research. An off-the-cuff answer won't do, because really, the court could go either way on this kind of thing, or instead create a frankenstein mish-mash of the two, if it wants. In copyright, there's an analogous issue with waivers to rights to licenses for future technologies. The courts fashioned some rule where (if I remember right, it's been a while) if the new technology was an outgrowth of old technology, the right was waived, but if a new one out of left field, the creator still retained the right. (I can rail about the ambiguities in the rule the court created, but that's for another post. Point is, what matters is what the court says, and a lawyer won't be able to give you the answer without investing time and at least a little money into the question.)
Your name implies you're a lawyer or at least a law student. If that's so, the best thing you could do is just look up the annotated statute on westlaw, and scroll down to the decisions that have analyzed it. (I would do this for you, but it's not free, and I only have a work-related password.)
Bottom line, I don't think this is something MeFi can do for you. I hope I'm wrong.
posted by kingjoeshmoe at 6:56 PM on December 4, 2006
Your name implies you're a lawyer or at least a law student. If that's so, the best thing you could do is just look up the annotated statute on westlaw, and scroll down to the decisions that have analyzed it. (I would do this for you, but it's not free, and I only have a work-related password.)
Bottom line, I don't think this is something MeFi can do for you. I hope I'm wrong.
posted by kingjoeshmoe at 6:56 PM on December 4, 2006
Best answer: They are enforceable. But they don't waive everything. For example, a claim that "arises" after the date of the signature is not waived. Also, certain claims cannot be waived under California public policy (e.g. workers' compensation claims). Finally, the scope of the 1542 waiver depends upon the scope of the general waiver, which usually comes earlier in the document. A typical general waiver waives all claims that could possibly arise out of the facts and allegations of the complaint (well, it says that with a lot more words). Some general releases go further, and say anything that could possibly arise out of the relationship (e.g. out of employment).
posted by ClaudiaCenter at 9:50 PM on December 4, 2006
posted by ClaudiaCenter at 9:50 PM on December 4, 2006
See Claxton v. Waters, 96 P.3d 496 (Ca. 2004). Also, is this a real world problem or a hypothetical?
posted by monju_bosatsu at 7:49 AM on December 5, 2006
posted by monju_bosatsu at 7:49 AM on December 5, 2006
Response by poster: Hi and thanks to all.
This is a real world problem -- the issue is that there's not much case law on this and while I've used this type of release a lot (and most colleagues use it a lot too); I don't know how often they are challenged in the real world (i.e. in unpublished cases and settled litigation). I write them, the parties sign them, and then they go away usually never to be heard from again. Which seems promising, but I couldn't give a client an answer (or even anecdotes) as to how often they are challenged or how "iron-clad" the provision really is.
posted by GIRLesq at 12:24 PM on December 5, 2006
This is a real world problem -- the issue is that there's not much case law on this and while I've used this type of release a lot (and most colleagues use it a lot too); I don't know how often they are challenged in the real world (i.e. in unpublished cases and settled litigation). I write them, the parties sign them, and then they go away usually never to be heard from again. Which seems promising, but I couldn't give a client an answer (or even anecdotes) as to how often they are challenged or how "iron-clad" the provision really is.
posted by GIRLesq at 12:24 PM on December 5, 2006
Question- I was sexually assaulted a year ago by a man I knew from church. I did not report at the time as he indicated he would get help. A few months ago, I asked said individual to contact my therapist and arrange to pay for therpaist fees. In turn, he went to the police and indicated I was trying to extort money from him (I did not ask for any money myself) and slapped me with a TRO indicating he was "afraid" of me. My attorney met with the detective investigating the "attempted extortion" and advised her that an assualt had in fact occurred (he indicated the sex was consensual) and that within a week of the assualt I made 4 fresh complaints to a nurse practitioner who examined me, my pastor, a therapist I was referred to, and I friend from church. Said detective indicated that she did not believe I was raped as I did not "act like a rape victim" (ergo, I took him to a bible study after) and that if I wanted to report, she would handle it. The long and short is we are entering into a civil compromise which will save me from having to go through a long cause RO hearing. Part of the civil compromise involves a 1542 waiver that states: "Both parties mutually agree to release all civil liabilities, which includes a CC 1542 waiver, as of the date of December 29, 2006." (Ergo, I can't sue him for malicious prosecution or personal injury). Though I have spent 10K on attorneys fees, my lawyer has not explained exactly what the waiver waives. Can someone explain this to me. My concern is work. I am a high paid consultant and clients require background checks and sometimes, security clearance. Let's say for example that the TRO (which will be released once the compromise is filed and signed by the courts), shows on a background check and inhibits my ability to pass a security clearance. Can I sue this man for infringment on my employability or am in signing this am I giving up ALL rights to sue him. Any help you could lend would be most appreciated.
posted by noel1204 at 4:00 PM on December 30, 2006
posted by noel1204 at 4:00 PM on December 30, 2006
This thread is closed to new comments.
posted by GIRLesq at 6:16 PM on December 4, 2006