Waiver
A waiver is the voluntary relinquishment or surrender of some known right or privilege. 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. Other names for waivers are exculpatory clauses, releases, or hold harmless clauses.
Sometimes the elements of "voluntary" and "known" are established by a legal fiction. In this case, it is presumed one knows his or her rights and that those rights are voluntarily relinquished if they are not asserted at the time.
In civil procedure, certain arguments must be raised in the first objection that a party submits to the court, or else they will be deemed waived.
Jurisdictional Differences
In some jurisdictions waivers in consumer contracts have been legislated against, effectively completely preventing their use. For example; in the England and Wales, s.2 of the Unfair Contract Terms Act 1977 prevents a business from using notices or contractual terms which attempt to exclude or limit liability for death or personal injury arising out of their negligence. Clauses purporting to exclude liability for loss or damage are subject to a reasonableness test in which the court will consider, amongst other factors, the balance of bargaining power held by each party to the contract.
The remainder of this page is primarily concerned with the position of waivers under US law.
Enforceability of Waivers
Laws, as the reader is aware, vary from jurisdiction to jurisdiction, so while this information is generally true, details may vary from place to place.
The key factor that courts look at when determing the applicability of a waiver are:
- A waiver can only release negligent activity, not intentional activity.
- The waiver must be signed voluntarily and with the full knowledge the right being waived.
- The waiver must be unambiguous and clear.
- The parties to the waiver must have equal bargaining power.
- A waiver cannot be applied to an essential service that would make it a matter of public policy.
Waivers have been found unenforceable in some cases, for example a waiver was too general as it included phrases such as "and otherwise".
Examples
Personal Jurisdiction
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 the case itself, 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 the circular logic 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.