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TYPES OF WAIVER
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express waiver.A voluntary and intentional waiver. [Cases: Estoppel 52.10(2). C.J.S.
Estoppel §§ 74–75, 84, 87.]
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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).
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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.]
- WAIVER BY ELECTION OF REMEDIES
waiver by election of remedies.A defense arising when a plaintiff has sought two inconsistent
remedies and by a decisive act chooses one of them, thereby waiving the other. [Cases: Election of
Remedies 1. C.J.S. Election of Remedies §§ 2–3.]
- WAIVER HEARING
waiver hearing.See transfer hearing under HEARING.
- WAIVER OF CLAIMS AND DEFENSES.
waiver of claims and defenses. 1. The intentional relinquishment by a maker, drawer, or other
obligor under a contract of the right to assert against the assignee any claims or defenses the
obligor has against the assignor. [Cases: Assignments 103; Bills and Notes 314; Secured
Transactions 185. C.J.S. Assignments § 100; Bills and Notes; Letters of Credit §§ 166–168;
Secured Transactions§ 139.] 2. The contractual clause providing for such a waiver.
- WAIVER OF COUNSEL
waiver of counsel.A criminal defendant's intentional relinquishment of the right to legal
representation. • To be valid, a waiver of counsel must be made voluntarily, knowingly, and
intelligently.
- WAIVER OF DEFENSES
waiver of defenses.Real estate. A document by which a mortgagor acknowledges that the
mortgage is good and valid for the full amount of the mortgage note. • This document ensures that
the mortgagor has no defenses to the mortgage. — Also termed estoppel certificate; no-setoff
certificate; declaration of no defenses. [Cases: Mortgages 415. C.J.S. Mortgages §§ 512–513,
531–534, 700.]
- WAIVER OF EXEMPTION
waiver of exemption. 1. A debtor's voluntary relinquishment of the right to an exemption
from a creditor's levy or sale of any part of the debtor's personal property by judicial process.
[Cases: Exemptions 89–99; Homestead 169–176.] 2. The contractual clause expressly
providing for such a waiver. [Cases: Exemptions 92; Homestead 170.]
- WAIVER OF IMMUNITY
waiver of immunity.The act of giving up the right against self-incrimination and proceeding
to testify. See IMMUNITY(3). [Cases: Witnesses 305.C.J.S. Witnesses §§ 552–554.]
- WAIVER OF NOTICE
waiver of notice.See WAIVER(1).
- WAIVER-OF-PREMIUM CLAUSE
waiver-of-premium clause.Insurance. A provision for a waiver of premium payments after the
insured has been disabled for a specified length of time, such as six months. [Cases: Insurance
2035. C.J.S. Insurance §§ 452–453, 556, 732–733, 773, 817, 832–833.]
- WAIVER OF PROTEST
waiver of protest.A relinquishment by a party to a negotiable instrument of the formality of
protest in case of dishonor. See PROTEST(2). [Cases: Bills and Notes 422. C.J.S. Bills and
Notes; Letters of Credit §§ 213–215, 219–228, 230.]
- WAIVER OF SERVICE
waiver of service.A defendant's voluntary submission to the jurisdiction made by signing an
acknowledgment of receipt of the petition and stating that he or she waives all further service.
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ESTOPPEL
- common definition of estoppel is limited to reliance on a
misrepresentation of an existing fact,
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reliance on a waiver or
promise as to the future
is sometimes said to create
- 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).
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ON WAIVERS; STUDY GUIDE
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By The Angry Jeweler; The Hennalady; Lisa Stinocher O'Hanlon
http://angryjeweler.wix.com/write
- WARNING; MAY CONTAIN OFFENSIVE LANGUAGE
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WAIVER OF TORT
waiver of tort.The election to sue in quasi-contract to recover the defendant's unjust benefit,
instead of suing in tort to recover damages. See implied-in-law contract under CONTRACT.
[Cases: Action 28. C.J.S. Actions §§ 90, 108–123.]
“A person upon whom a tort has been committed and who brings an action for the benefits
received by the tortfeasor is sometimes said to ‘waive the tort.’ ” Restatement of Restitution § 525
(1937).“
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‘Waiver of tort’ is a misnomer. A party only waives a tort in the sense that he elects to sue in
quasi-contract to recover the defendant's unjust benefit rather than to sue in tort to recover
damages; he has a choice of alternative remedies. But the tort is not extinguished. Indeed it is said
that it is a sine qua non of both remedies that he should establish that a tort has been committed.”
Lord Goff of Chieveley & Gareth Jones, The Law of Restitution 605 (3d ed. 1986).
- Sine qua non 1] or condicio sine qua non (plural: condiciones sine quibus non)
refers to an indispensable and essential action, condition, or ingredient.
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WAIVER;
Black's Law Dictionary (8th ed. 2004) , Page 4889 - 4892
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WAIF
waif, n.1. An abandoned article whose owner is unknown, esp. something stolen and thrown
away by the thief in flight, usu. through fear of apprehension. • At common law, if a waif, whether
stolen or merely abandoned, was seized before the owner reclaimed it, the title vested in the
Crown. The owner was thus punished for leaving the property or for failing to pursue the thief and
attempting to recover the property. Today, however, the general rule is that a waif passes to the
state in trust for the true owner, who may regain it by proving ownership.
“Waifs, bona waviata, are goods stolen, and waived or thrown away by the thief in his flight,
for fear of being apprehended. These are given to the king by the law, as a punishment upon the
owner, for not himself pursuing the felon, and taking away his goods from him. And therefore if
the party robbed do his diligence immediately to follow and apprehend the thief (which is called
making fresh suit) or do convict him afterwards, or procure evi-dence to convict him, he shall
have his goods again.” 1 William Blackstone, Commentaries on the Laws of England 286–87
(1765).
2.Hist. A homeless person, esp. a woman or child; a social outcast. See WAIVERY.“[In the
thirteenth century] a woman, though she cannot be outlawed, can be ‘waived,’ declared a ‘waif,’
and ‘waiver’ seems to have all the effects of outlawry.” 1 Frederick Pollock & Frederic William
Maitland, History of English Law Before the Time of Edward I 482 (2d ed. 1898).
Black's Law Dictionary (8th ed. 2004) , Page 4888
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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.]
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‘Waiver’ is often inexactly defined as ‘the voluntary relinquishment of a known right.’
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“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 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).
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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).
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“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).
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ROOT MEANING OF WAIVER
- WAIVERY
waivery.Hist. The act of putting a woman outside the protection of the law. • At common law,
a woman could not be “outlawed” because she was not considered “in law” — that is, she could
not undertake legal proceedings on her own. By Bracton's day, the effect of outlawing a woman
was achieved by “waiving” her — the act being called waivery.