waiver

The intentional or voluntary relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right, or when one dispenses with the performance of something he is entitled to exact or when one in possession of any right, whether conferred by law or by contract, with full knowledge of the material facts, does or forbears to do something the doing of which or the failure of forbearance to do which is inconsistent with the right, or his intention to rely upon it. The renunciation, repudiation, abandonment, or surrender of some claim, right, privilege, or of the opportunity to take advantage of some defect, irregularity, or wrong. An express or implied relinquishment of a legal right. A doctrine resting upon an equitable principle, which courts of law will recognize. Atlas Life Ins. Co. v. Schrimsher, 179 Okl. 643, 66 P.2d 944, 948.

Waiver is essentially unilateral, resulting as legal consequence from some act or conduct of party against whom it operates, and no act of party in whose favor it is made is necessary to complete it. Coleman Production Credit Ass'n v. Mahan, Tex.Civ.App., 168 S.W.2d 903, 904.

And may be shown by acts and conduct and sometimes by nonaction. Concrete Engineering Co. v. Grande Bldg. Co., 230 Mo.App. 443, 86 S.W.2d 595, 608.

The term is often used in the context of waiving one's right to counsel (for example, Miranda warning) or waiving certain steps in the criminal justice process (for example, the preliminary hearing). Essential to waiver is the voluntary consent of the individual.

See e.g. Fed.R.Crim.P. 44(a).

Terms "estoppel" and "waiver" are not synonymous; "waiver" means the voluntary, intentional relinquishment of a known right, and "estoppel" rests upon the principle that, where anyone has done an act, or made a statement, which would be a fraud on his part to controvert or impair, because other party has acted upon it in belief that what was done or said was true, conscience and honest dealing require that he not be permitted to repudiate his act or gainsay his statement. Peloso v. Hartford Fire Ins. Co., 102 N.J.Super. 357, 246 A.2d 52, 58.

See also abandonment

- estoppel

- forfeiture.

@ express waiver

The voluntary, intentional relinquishment of & known right.

@ implied waiver

A waiver is implied where one party has pursued such a course of conduct with reference to the other party as to evidence an intention to waive his rights or the advantage to which he may be entitled, or where the conduct pursued is inconsistent with any other honest intention than an intention of such waiver, provided that the other party concerned has been induced by such conduct to act upon the belief that there has been a waiver, and has incurred trouble or expense thereby. To make out a case of implied "waiver" of a legal right, there must be a clear, unequivocal and decisive act of the party showing such purpose, or acts amounting to an estoppel on his part. Rosenthal v. New York Life Ins. Co., C.C.A.Mo., 99 F.2d 578, 579.

See also estoppel

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Insurance law.

Substance of doctrine of "waiver" in insurance law is that if insurer, with knowledge of facts which would bar existing primary liability, recognizes such primary liability by treating policy as in force, it will not thereafter be allowed to plead such facts to avoid its primary liability.

See also lien waiver.

@ waiver by election of remedies, doctrine of

@ doctrine of waiver by election of remedies

Doctrine applies if there exist two or more coexisting remedies between which there is right of election, inconsistency as to such available remedies, and actual bringing of action or doing some other decisive act, with knowledge of facts, whereby party electing indicates his choice between such inconsistent remedies. Hertz v. Mills, D.C.Md., 10 F.Supp. 979, 981

@ waiver of claims and defenses

A term in an instrument or other contract whereby the maker, drawer or other obligor explicitly agrees not to assert against an assignee of the contract any claim or defense the obligor has against the assignor

@ waiver of exemption

A clause inserted in a note, bond, lease, etc., expressly waiving the benefit of the laws exempting limited amounts of personal property from levy and sale on judicial process, so far as concerns the enforcement of the particular debt or obligation

@ waiver of immunity

A means authorized by statutes by which a witness, in advance of giving testimony or producing evidence, may renounce the fundamental right guaranteed to him by constitutions, that no person shall be compelled in any criminal case to be a witness against himself. In re Grae, 282 N.Y. 428, 26 N.E.2d 963, 966.

See immunity

@ waiver of premium clause

Provision in insurance policy providing for waiver of premium payments upon disability of insured. Commonly such waiver only takes effect after a certain time period of disability; e.g. six months

@ waiver of tort

The election, by an injured party, for purposes of redress, to treat the facts as establishing an implied contract, which he may enforce, instead of an injury by fraud or wrong, for the committing of which he may demand damages, compensatory or exemplary

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