Chapter 16-6 Waiver

• Jurisdiction: United States

16-6 Waiver

The defense of waiver is often referenced alongside an estoppel defense.⁴² Waiver can either be express or implied under the circumstances.⁴³ Waiver can never operate as an offensive sword.⁴⁴ Waiver can only operate as a defensive shield.⁴⁵ A waiver operates as a complete bar to the enforcement of the waived right.⁴⁶

16-6:1 Elements

(1) The plaintiff held an existing right, benefit, or advantage;⁴⁷

(2) The plaintiff had actual knowledge of its existence;⁴⁸ and

(3) The plaintiff had actual intent to relinquish the right, or intentional conduct inconsistent with the right.⁴⁹

Even a non-waiver provision in a contract may be waived, but the waiver may not "be anchored in the same conduct the parties specifically agreed would not give rise to a waiver of contract rights."⁵⁰ For example, a landlord's acceptance of late rental payments does not waive the non-waiver provision of the underlying commercial lease or the requirement that rent is due on the date specified in the lease and, therefore, the landlord was still able to enforce other rights in the lease agreement and prohibit the tenant from extending the lease under another provision based upon timely...