Regulatory agencies or governments may issue waivers to exempt companies from certain regulations. For example, a United States law restricted the size of banks, but when banks exceeded these sizes, they obtained waivers. In another example, the United States federal government may issue waivers to individual states so that they may provide Medicare in different ways than the law typically requires.
While a waiver is often in writing, sometimes a person's actions can act as a waiver. An example of a written waiver is a disclaimer, which becomes a waiver when accepted. When the right to hold a person liable through a lawsuit are waived, the waiver may be called an exculpatory clause, liability waiver, legal release, or hold harmless clause.
In some cases, parties may sign a "non-waiver" contract which specifies that no rights are waived, particularly if a person's actions may suggest that rights are being waived. This is particularly common in insurance, as it is less detailed than a reservation of rights letter; the disadvantage is that it requires the signature of the insured.
Sometimes the elements of "voluntary" and "known" are established by a legal fiction. In this case, one is presumed to know one's rights and that those rights are voluntarily relinquished if not asserted at the time.
The following represent a general overview of considerations; specifics may vary dramatically depending on the jurisdiction.
Key factors that some courts (depending on jurisdiction) may look at while determining the applicability of a waiver:
- In some jurisdictions, one may not prospectively waive liability for some or all intentional activities
- Waivers generally must be made voluntarily and with the full knowledge (or the ability to know) of the right being waived
- The waiver should be unambiguous and clear to a reasonable person
- In some jurisdictions (not including the United States), it may be necessary that the parties to the waiver have equal bargaining power
- A waiver may have limited application where one contracts for an "essential service" such that it may violate public policy for liability to be waived
In the case of Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982) the United States Supreme Court decided that when a court orders a party to produce proof on a certain point, and that party refuses to comply with the court's order, the court may deem that refusal to be a waiver of the right to contest that point and assume that the proof would show whatever the opposing party claims that it would.
In that court case, the defendant had argued that the court lacked personal jurisdiction over it but refused a court order to produce evidence of this lack of jurisdiction. The defendant argued that, because the court lacked jurisdiction, the court had no authority to issue an order to show proof of the lack of jurisdiction. The Supreme Court rejected that argument and determined that the defendant's refusal to comply waived the right to contest jurisdiction, just as if it had never contested jurisdiction at all.
- Financial Debate Renews Scrutiny on Banks’ Size. New York Times.
- Waivers. Medicaid.gov.
- Insurance Law - Difference Between Non-waiver Agreement and Reservation of Rights. John Reilly & Associates.
Howe, B (17 May 2011). "Information on Waiver Forms". Waiver Form Information. Open Publishing. Retrieved 22 February 22, 2012. → Howe, B (17 May 2011). Open Publishing. Retrieved 22 Feb 2012