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 payment of rent.⁵¹

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Notes:

^[42] Ulico Cas. Co. v. Allied Pilots Ass'n, 262 S.W.3d 773, 778 (Tex. 2008).

^[43] Motor Vehicle Bd. of Texas Dep't of Transp. v. El Paso Indep. Auto. Dealers Ass'n, Inc., 1 S.W.3d 108, 111 (Tex. 1999).

^[44] Washington Nat'l Ins. Co. v. Craddock, 109 S.W.2d 165, 166 (Tex. Comm'n App. 1937).

^[45] Washington Nat'l Ins. Co. v. Craddock, 109 S.W.2d 165, 166 (Tex. Comm'n App. 1937) (insurance company's initial payment of a claim outside of the insurance policy could not support the creation of a right of payment in favor of the insured).

^[46] See Motor Vehicle Bd. of Tex. Dep't of Transp. v. El Paso Indep. Auto. Dealers Ass'n, Inc., 1 S.W.3d 108, 111 (Tex. 1999).

^[47] Ulico Cas. Co. v. Allied Pilots Ass'n, 262 S.W.3d 773, 778 (Tex. 2008).

^[48] Ulico Cas. Co. v. Allied Pilots Ass'n, 262 S.W.3d 773, 778 (Tex. 2008).

^[49] Ulico Cas. Co. v. Allied Pilots Ass'n, 262 S.W.3d 773, 778 (Tex. 2008).

^[50] Shields, LP v. Bradberry, No. 15-0803, 2017 WL 2023602 (Tex. May 12, 2017).

^[51] Shields, LP v. Bradberry, No. 15-0803, 2017 WL 2023602 (Tex. May 12, 2017).