11/10/17 The Use of the Term Waiver

The Use of the Term Waiver

The voluntary surrender of a known right; conduct supporting an inference that a particular right has been relinquished.

The term waiver is used in many legal contexts. A waiver is essentially a unilateral act of one person that results in the surrender of a legal right. The legal right may be constitutional, statutory, or contractual, but the key issue for a court reviewing a claim of waiver is whether the person voluntarily gave up the right. If voluntarily surrendered, it is considered an express waiver.

A waiver is the intentional and voluntary giving up of a right, either by an express statement or by conduct (such as not enforcing a right).The problem which may arise is that a waiver may be interpreted as giving up the right to enforce the same right in the future.

Example: the holder of a promissory note who several times allows the debt or to pay many weeks late does not agree to waive the due date on future payments. A waiver of a legal right in court must be expressed on the record.

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