In the United States, there is a general presumption that contracts are “void ab initio” (Latin for “from the beginning”) and unenforceable when they are unconscionable. An exculpatory clause is generally unenforceable when, among other things, it purports to release one party from responsibility for its own negligence. In such cases, courts will refuse to enforce the contract because of public policy considerations. What is an exculpatory clause?
As a general rule, contracts contemplating the release of one party from responsibility for its own negligence are unenforceable. A good example: In Texas, courts have gone so far as to refuse to enforce agreements that would absolve one party’s liability arising out of their own willful and wanton misconduct. Courts will generally consider such clauses unconscionable because they usually allow a defendant who has engaged in intentional wrongdoing to profit at the expense of the plaintiff (who can’t sue). This public policy consideration arises again when considering contract provisions which purport to excuse or limit liabiilty arising from injury caused by another person–i.e., claiming protection under the doctrine of assumption of risk