WAIVER

waiver (way-v<<schwa>>r), n.1. The voluntary relinquishment or abandonment — express or implied — of a legal right or advantage; FORFEITURE <waiver of notice>. • The party alleged to have waived a right must have had both knowledge of the existing right and the intention of forgoing it. Cf. ESTOPPEL. [Cases: Estoppel  52.10. C.J.S. Estoppel §§ 67–68, 70–72, 75–76, 79, 159–160.]

“The term waiver is one of those words of indefinite connotation in which our legal literature abounds; like a cloak, it covers a multitude of sins.” William R. Anson, Principles of the Law of Contract 419 (Arthur L. Corbin ed., 3d Am. ed. 1919).

“ ‘Waiver’ is often inexactly defined as ‘the voluntary relinquishment of a known right.’ When the waiver is reinforced by reliance, enforcement is often said to rest on ‘estoppel.’ … Since the more common definition of estoppel is limited to reliance on a misrepresentation of an existing fact, reliance on a waiver or promise as to the future is sometimes said to create a ‘promissory estoppel.’ The common definition of waiver may lead to the incorrect inference that the promisor must know his legal rights and must intend the legal effect of the promise. But … it is sufficient if he has reason to know the essential facts.” Restatement (Second) of Contracts § 84 cmt. b (1979).

“Waiver is often asserted as the justification for a decision when it is not appropriate to the circumstances.” Robert E. Keeton & Alan I. Widiss, Insurance Law § 6.8, at 719 (1998).

“Although it has often been said that a waiver is ‘the intentional relinquishment of a known right,’ this is a mis-leading definition. What is involved is not the relinquishment of a right and the termination of the reciprocal duty but the excuse of the nonoccurrence of or a delay in the occurrence of a condition of a duty.” E. Allan Farnsworth, Contracts § 8.5, at 561 (3d ed. 1999).

express waiver.A voluntary and intentional waiver. [Cases: Estoppel  52.10(2). C.J.S. Estoppel §§ 74–75, 84, 87.]

implied waiver.A waiver evidenced by a party’s decisive, unequivocal conduct reasonably inferring the intent to waive. [Cases: Estoppel  52.10(3). C.J.S. Estoppel §§ 69, 71, 76, 79.]

“An implied waiver may arise where a person has pursued such a course of conduct as to evidence an intention to waive a right, or where his conduct is inconsistent with any other intention than to waive it. Waiver may be inferred from conduct or acts putting one off his guard and leading him to believe that a right has been waived. Mere silence, however, is no waiver unless there is an obligation to speak.” 28 Am. Jur. 2d Estoppel and Waiver § 160, at 845–46 (1966).

prospective waiver.A waiver of something that has not yet occurred, such as a contractual waiver of future claims for discrimination upon settlement of a lawsuit.

subject-matter waiver.A waiver that may result when a party voluntarily discloses a communication or privileged material about a particular topic to a third party. • A party’s voluntary disclosure may lead a court to find an implied waiver that extends to all other communications relating to the same subject matter.

waiver of notice.Parliamentary law. The waiver that occurs when a defective notice for a

meeting is issued but every member attends and participates without objecting to the defect.

2. The instrument by which a person relinquishes or abandons a legal right or advantage <the plaintiff must sign a waiver when the funds are delivered>.

jury waiver.A form signed by a criminal defendant who relinquishes the right to have the trial conducted before a jury.

lien waiver.A written and signed waiver of a subcontractor’s mechanic’s lien rights, usu. submitted to enable the owner or general contractor to receive a draw on a construction loan. [Cases: Mechanics’ Liens  208. C.J.S. Mechanics’ Liens §§ 252–253.]
[Blacks Law 8th]