Q: In your May 5, 2008, column, "It's all for one, one for all when clients agree to a disclaimer," you noted that a court had ruled that one person could sign a tour disclaimer for the other member of her traveling party, thereby binding the nonsigner to the disclaimer. So, would you advise our agency that it is sufficient for just one member of a party to sign our disclaimer? If not, would it be different if the signer and nonsigner were married? Can a parent sign for his or her child? Can a group leader sign for the whole group?
A: Even though the court in the Massachusetts case said that the signer bound the other member of her party, I still believe that it is prudent to try to get the signature of every traveler who is age 18 or older.
Under U.S. law, in most cases a party does not have to sign a contract in order to be bound if the court can decide, based on all the evidence, that the nonsigner intended to be bound by the contract. It is the intention that counts under the law, not the formalities.
One way in which a party can manifest his intention to be bound is by delegating the signing to someone else, such as another member of his traveling party, who then signs.
So when the court found that the signer bound the nonsigner, the court was saying that, based on all the evidence, it looked like the nonsigner delegated the signing to the one who signed and therefore intended to be bound by the one signature.
The trouble is that, in most cases, when a nonsigner wants to claim in a suit that the disclaimer does not bind him, he will say that he never gave the signer the authority to bind him, and the signer will probably say that he did not intend to bind the nonsigner.
Therefore, most courts would probably say that there is no evidence that the non-signer intended to be bound.
It makes no difference whether or not the travelers are married to each other. Husbands have no special rights to bind wives to contracts if the wives do not intend to be bound, and vice-versa.
Children are different. The signature of a child younger than age 18 has no meaning under U.S. law, except in rare, inapplicable cases.
A minor cannot agree to a contract; nor can a minor enforce a contract by virtue of signing it.
However, a parent's signature will bind a minor, even if the minor does not intend to be bound.
Of course, if any offspring are 18 or older, you should treat them like every other adult under the law.
As you can deduce by now, a group leader can indeed bind the other members of the group, if (and only if) you can prove that the other adults in the group intended to be bound by the leader's signature.
Since you will not be able to prove this in most cases, my advice is to try to get every adult to sign.
Finally, in all these cases, if you can only get one person to sign, try to add a clause stating that the signer will indemnify you against all claims asserted by nonsigning members of the party or group.
Mark Pestronk is a Washington-based lawyer specializing in travel law. To submit a question for Legal Briefs, email Pestronk at [email protected].