This article discusses waiver / release form (hereinafter referred to as "Participation Form") which is signed by the participants or their parents/guardians, as the case may be to enter into adventure sports / games. Herein, certain broad issues have been discussed, namely (i) waiver under law, (ii) negligence vis-ŕ-vis right to sue, and (iii) legality of Participant Form signed by guardian/ parents for participation of their minor children.
Generally speaking, adventure sport(s) indulge participants above the age of 8 years who will be divided into two age groups, i.e. one of age 8 to15 years as the 'kids group' and another age group of 16 years and above as the 'adult group'. In the adventure sport(s) for 'kids group', one parent/guardian will accompany the child on the course in order to monitor them. While the parent/guardian will not be allowed to participate in the adventure sport(s), they are merely there to cheer their children on and ensure they follow the rules of completing the adventure sport(s) safely. Adventure sport(s) has certain inherent risks and dangers which the participants may exposed to while undertaking / participating in the adventure sport(s). These risks may include serious bodily injury, sickness and disease, permanent disability, drowning, near-drowning, sprains, strains, fractures, heat and cold injuries, overuse syndrome, injuries involving vehicles or other convenience, animal bites and/or stings, contact with poisonous plants, leading to heart attack and permanent paralysis and/or death. In order to make participants aware and for safeguarding the interests of Organizer(s) from any legal actions that may be initiated by the participants arising out of accidents during the adventure sport(s), Organizer(s) would require the participants to execute a participation form containing terms & conditions of participations which shall include terms related to assumption of risk, release of liability, indemnity, participants' sole responsibility for their own conduct and actions while participating in the adventure sport(s).
We now discuss the relevant legal provisions under the applicable legal provisions in relation to the Participation Form, as under:
1.1. As per relevant provisions1 of the Indian Contract Act 1872 ("ICA"), all agreements are contracts if they are made by the free consent of the parties for a lawful consideration2 and with a lawful object and are not declared void under the ICA. The free consent is an essential requirement of a valid contract. Consent is said to be free when it is not caused by coercion, undue influence, fraud, misinterpretation, or mistake.
1.2. The consent must be taken from persons competent to contract3, i.e., the parties should have the capacity to enter into a contract; and as per Indian law, only the following persons are competent to enter into a contract:
- Persons who are of sound mind;
- Persons who are of age of majority, i.e., 18 years or older;
- Persons who are not disqualified from contracting by any applicable law to which they are subject.
1.3. According to section 3(1) of the Indian Majority Act, 18754, every person domiciled in India shall be deemed to have attained the age of majority when he shall have completed the age of 18 years, except for persons for whom a guardian has been appointed by the court, who shall attain majority at the age of 21 years and not before.
1.4. Section 4(a) of the Hindu Minority and Guardianship Act, 1956 states that 'minor' means a person who has not completed the age of eighteen years. The Hindu Minority and Guardianship Act, 1956 is applicable not only to Hindu minor but also to a minor who is a Buddhist, Jain or Sikh by religion. So far as Muslim law is concerned, the father is recognized as guardian which term in the context is equivalent to natural guardian and the mother in all schools of Muslim law is not recognized as a guardian, natural or otherwise, even after the death of the father5.
1.5. Section 8 (1) of the Hindu Minority and Guardianship Act, 1956 states that the natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant.
1.6. The Hindu Minority and Guardianship Act, 1956 defines 'Guardian' as a person having the care of the person of a minor or of his property or of both his person and property, and includes:
- a natural guardian,
- a guardian appointed by the will of the minor's father or mother,
- a guardian appointed or declared by a court, and
- a person empowered to act as such by or under any enactment relating to any Court of ward.
1.7. Natural Guardians: The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are defined under Section 6 of the the Hindu Minority and Guardianship Act, 1956 as follows:
- in the case of a boy or an unmarried girl—the father, and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
- in the case of an illegitimate boy or an illegitimate unmarried girl—the mother, and after her, the father.
1.8. Section 11 of ICA declares "minors" incompetent to contract. However section 8 of the Hindu Minority and Guardianship Act, 19566 and section 24 of the Guardians and Wards Act, 18907 legal as well as natural guardians can do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate.
1.9. Further, section 878 of the Indian Penal Code, 1860 (IPC), also provides 18 years as the age for giving consent for acts not intended and not known to be likely to cause death or grievous hurt. 1.10. Promisee's Waiver: As per section 639 of ICA, a promisee in its discretion may i) dispense with or remit (wholly or in part) the performance of the promise made to him; or ii) extend the time for such performance; or iii) accept instead of it any satisfaction which he thinks fit. 1.11. Thus:
- An agreement which is made by the free consent of the parties competent to enter into an agreement for a lawful consideration and with a lawful object shall be termed as a valid contract and minors are incompetent to enter into a contract.
- Section 11 of the ICA disqualifies a minor himself entering into a contract but does not prohibit a minor entering into a contract through a guardian.
- Section 63 entitles a promisee to waive (wholly or in part) the performance of the promise made by a promisor towards him or extend the time of such performance.
- Relatives other than the actual parents or legal guardians cannot sign the waiver for a minor by law.
Judicial Authorities: Waiver :
- A waiver is the abandonment of a right and is either express or implied from conduct. A person who is entitled to the benefit of a statutory provision may waive it and allow the transaction to proceed as though the provision did not exist. (See: Gangadhar Vs. Election Tribunal, Vindhya Pradesh and others (AIR 1954 VP 44))
- Waiver is a "voluntary and intentional relinquishment or abandonment of a known, existing legal right, advantage, benefit, claim or privilege, which except for such waiver the party would have enjoyed. Waiver is express or implied; express, when the person entitled to anything expressly and in terms gives it up, in which case it nearly resembles a release; implied, when the person entitled to anything does or acquiesces in something else which is inconsistent with that to which he is so entitled. (See: Badri Narayan Harnand Roy Vs. Jawahar Singh Maniram and Anr. (AIR1961MP29))
- It is settled law that as per Section 63 of the ICA, it is open to a promisee to dispense with or remit, wholly or in part, the performance of the promise made to him or he can accept instead of it any satisfaction which he thinks fit. Waiver is the abandonment of a right which normally everybody is at liberty to waive. "A waiver is nothing unless it amounts to a release. It signifies nothing more than an intention not to insist upon the right." (See: Jagad Bandhu Chatterjee vs. Smt. Nilima Rani and Ors. [(1969 3 SCC 445] and Woman Shriniwas Kini v. Ratilal Bhagwandas & Co. [1959 Supp. 2 S.C.R. 217]
- A release/waiver is contractual in nature and is governed by the law of contracts. Therefore, a valid release/ waiver must exhibit all the ingredients of a valid contract keeping in mind that a release is the relinquishment of a right, claim, or privilege by a person in whom the right, claim, or privilege exists to the person against whom it might have been demanded or enforced.
Negligence vis-ŕ-vis Right to Sue:
- If a person is fully conscious of risks of failure of the procedure/operation and if such person consents in writing that neither she nor her family members or any other person will make the doctor/ health facility centre conduction operation responsible for unsuccessful operation, the claim of such person for compensation on account of failure of the sterilization procedure cannot be entertained by the Court unless negligence is proven on the part of the attended doctor. [See: Mala Devi vs. The State Govt. of NCT of Delhi [W.P.(C) 7178/2012] and Smt. Madhubala vs. Govt. of NCT of Delhi and Ors. [118 (2005) DLT 515)]
- Klaus Mittelbachert vs. East India Hotels Ltd. [1999 ACJ 287] In this matter while deciding the issue whether hotel was negligent or not, it was observed by the Court that presence of a diving board at the head of the swimming pool is an invitation for the guests to use it and dive in the swimming pool. In a hotel, the swimming pool filled with water carries an implied warranty as to safety that the swimming pool is structurally and from architectural point of view so designed as to be safe, that the water is free from infection, that the depth of the water is safe for swimming. Any latent defect in its structure or service, which is hazardous to guests, would attract strict liability to compensate for consequences flowing from its breach of duty to take care. The Court observed that three conditions must be satisfied to attract applicability of rest ipsa loquitur (the thing speaks for itself): (i) the accident must be of a kind which does not ordinarily occur in the absence of someone's negligence; (ii) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (iii) it must not have been due to any voluntary action or contribution on the part of the plaintiff. The Court held that the swimming pool was a trap on account of its having a latent hazard in structure and designing- providing not a safe depth of water at the plummet point and the hotel and owner of the hotel were held liable to indemnify the plaintiff for the injuries suffered by him.
- The precept of "negligence" means failure to observe, for the protection of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. The test of negligence lies in default to exercise the ordinary care and caution which is expected of a prudent man in the circumstances of a given case. [See: M.N. Rajan And Ors. Vs. Konnali Khalid Haji And Anr [III (2004) ACC 273]
- While deciding whether the organizers of an air show had taken reasonable care in conducting the air show, it was observed by the Court that the air show organizers had no experience in arranging such events in the past and no written procedures on operation of aircraft during the show were laid down and circulated to the participants before conducting the show. Based on the above observations, the Court held that the organizers were reckless in conducting the air show and liable for the compensation. [See: Sudha S. and Others Vs. Union of India and Others ILR2013(3)Kerala245]
- Keeping in view the above stated precedents, if a person gives his consent that he/she will not take any action against the other party for occurrence/ non-occurrence of any specific event(s), such person cannot initiate any action against for occurrence/non-occurrence of such specific event(s). If any such specific event(s) is occurred/not occurred due to negligence of the other person (organizer) and where such other person (organizer) owes a duty to take care towards the person who provided his consent, the person (who provided his consent) shall be entitled to claim the cost/damages/ compensation for the negligence of such other person.
Participant Form signed by parent / guardian for participation of minors:
- When the age of majority has been provided by law to be 18 years, any person less than that age, even by a day would be a minor in law. [See: Bhim Mandal v. Magaram Corain (AIR 1961 Pat 21)]
- A minor has no legal competency to enter into a contract or authorize another to do so on his behalf. A guardian therefore steps in to supplement the minor's defective capacity. Capacity is the creation of law whereas authority is derived from the act of parties. The guardian can only function within the doctrine of legal necessity or benefit. The validity of the transaction is judged with reference to the scope of guardian's power to enter into a contract on behalf of the minor. [See: Vadakattu Suryaprakasham v. Ake Gangaraju (AIR1956AP33)]
- Under the Hindu Law, the natural guardian is empowered to enter into a contract on behalf of the minors and the contract would be binding and enforceable if the contract is for the benefit of the minor. (See: Manik Chand And Anr vs Ramachandra Son Of Chawriraj 1981 AIR 519 & Roomal And Ors. vs Siri Niwas AIR 1985 Delhi 153)
- The provision of sub-section (1) of Section 8 of the Act (as mentieond herein above under 3.3. (iii)) makes it expressly clear in unqualified terms that no personal covenant of the guardian shall be binding on the minor. (See: Darbara Singh Vs. Karminder Singh and Ors. AIR1979P&H215)
- It is well settled law that the guardian can in no case bind the minor by a personal covenant. As per Black's Law Dictionary 'personal covenant' means a covenant that creates a personal right or obligation enforceable only between the covenanting parties and that is not binding on the heirs or assigns of the parties.
- In the instant matter, the Participant Form is a contract and will be binding upon the participants so long as the conditions of a valid contract are satisfied. So far as minors are concerned, they are incompetent to enter into a contract and therefore a minor participant should not sign the Participant Form on his/her own.
- As the age of majority is 18 years under law, any person less than 18 years of age, even by a day will be a minor in law. Therefore, the participation of minors ought to be facilitated by the parent / guardian10 of such minor participant to the adventure sport(s) by signing the Participation Form.
- Further the parents/guardians of the minor participants shall be bound by the terms and conditions of the Participation Form. However, keeping in view the applicable laws, the terms and conditions of the Participation Form shall not bind the minor participants. Meaning thereby, the terms and conditions of the Participation Form cannot be enforced agasint the minor participants and such minor participants may raise/make claims against Organizer(s) for any injury/loss/damage caused to such minor participants during the Obsticle Race.
- Inclusion of indemnification provisions in the Partcipation Form to be given by the parent/ guardian of the minor participants is suggested. Wherein the parent/guardian agrees to indemnify, defend and hold harmless Organizer(s) (among other things) from and against any and all liability/ claim(s) made by his child (minor participant) which may arise out of, result directly or indirectly from, or relate to his child's participation in the adventure sport(s). Therefore, if any action is initiated by a minor participant against Organizer(s), the parent/ guardian of such minor participant shall be liable to make good any loss/cost suffered by Organizer(s) from such action initiated by the concerned minor participant.
Based on the legal provisions, precedents and analysis made herein above, a Participation Form which is duly signed by the participant (competent person or through parent/guardian) shall bind such participant with the terms and conditions of the Participant Form. Organizer(s) ought to make aware all the participants with respect to the rules, regulations, procedures, safety instructions, method (if any), course of action, policy, guiding principles and such other instructions howsoever named, in relation to the adventure sport(s). In case a participant is a minor (below the age of 18 years on the day of his/her participation on the adventure sport(s)) then the parent/guardian of such minor participant ought to sign the Participation Form for participation of such minor in the adventure sport(s). The terms and conditions of the Participation Form cannot be enforced agasint the minor participants. Organizer(s) has a duty to take care towards the participants of the adventure sport(s). If any damage, injury, disability, harm, liability, loss, or expense is caused to any participant(s) due to negligence of Organizer(s) in conducting or organizing the adventure sport(s), in such cases the concerned participant may initaite civil/criminal action including claim for damages / compensation against Organizer(s).
1. Section 10 (What Agreements are Contracts), section 11 (Who are Competent to Contract), section 13 (Consent) and section 14 (Free Consent) of ICA
2. When, at the desire of the promisor*, the promisee** or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise. (Section 2 (f) of the ICA) * Person making the proposal. **Person accepting the proposal.
3. Section 11 of ICA
4. Subject as aforesaid, every minor of whose person or property, or both, a guardian, other than a guardian for a suit within the meaning of Chapter XXXI of the Code of Civil Procedure, has been or shall be appointed or declared by any Court as Justice before the minor has attained the age of eighteen years, and every minor of whose property the superintendence has been or shall be assumed by any Court of Wards before the minor has attained that age shall, notwithstanding anything contained in the Indian Succession Act or in any other enactment, be deemed to have attained his majority when he shall have completed his age of twenty-one years and not before. Subject as aforesaid every other person domiciled in India shall be deemed to have attained his majority when he shall have completed his age of eighteen years and not before.
5. Meethiyan Sidhiqu vs Muhammed Kunju Pareeth Kutty & Ors [1996 SCC (7) 436]
6. (1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant.
7. A guardian of the person of a ward is charged with the custody of the ward and must look to his support, health and education, and such other matters as the law to which the ward is subject requires.
8. Section 87, IPC (Act not intended and not known to be likely to cause death or grievous hurt, done by consent) - Nothing which is not intended to cause death, or grievous hurt, and which is not known by the doer to be likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, to any person, above eighteen years of age, who has given consent, whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm. Illustration: A and Z agrees to fence with each other for amusement. This agreement implies the consent of each to suffer any harm which, in the course of such fencing, may be caused without foul play; and if A, while playing fairly, hurts Z, A commits no offence.
9. Section 63 ICA (Promisee may dispense with or remit performance of promise) — Every promisee may dispense with or remit, wholly or in part, the performance of the promise made to him, or may extend the time for such performance, or may accept instead of it any satisfaction which he thinks fit.
10 In case of Hindu/Sikh/Christian minors - Father (and in absence of father, mother. In case of Muslim minors - Father (and in absence of father, grandfather or an appointed executor)
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