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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 Medicaid in different ways than the law typically requires.
While a waiver is often in writing, sometimes a person's words can also be used as a counteract to 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 is 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
- A waiver that the courts will not enforce because the purpose of the agreement is to achieve an illegal end constitutes an illegal agreement.
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.
Illegal waiver or agreement
In US states such as California, a waiver is not lawful when it is contrary to an express provision of law, its implicit policy, or good morals. Furthermore, one cannot waive responsibility for violation of law, willful injury to a person or property of another, for fraud, or waive their residential tenant rights.
- 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.
- CAL. CIV. CODE § 1667: That is not lawful which is: 1. Contrary to an express provision of law; 2. Contrary to the policy of express law, though not expressly prohibited; or, 3. Otherwise contrary to good morals.
- CAL. CIV. CODE § 1668: All contracts which have for their object, directly or indirectly, to exempt any one from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.
- CAL. CIV. CODE § 1953: (a) Any provision of a lease or rental agreement of a dwelling by which the lessee agrees to modify or waive any of the following rights shall be void as contrary to public policy: (1) His rights or remedies under Section 1950.5 or 1954. (2) His right to assert a cause of action against the lessor which may arise in the future. (3) His right to a notice or hearing required by law. (4) His procedural rights in litigation in any action involving his rights and obligations as a tenant. (5) His right to have the landlord exercise a duty of care to prevent personal injury or personal property damage where that duty is imposed by law. (b) Any provision of a lease or rental agreement of a dwelling by which the lessee agrees to modify or waive a statutory right, where the modification or waiver is not void under subdivision (a) or under Section 1942.1, 1942.5, or 1954, shall be void as contrary to public policy unless the lease or rental agreement is presented to the lessee before he takes actual possession of the premises. This subdivision does not apply to any provisions modifying or waiving a statutory right in agreements renewing leases or rental agreements where the same provision was also contained in the lease or rental agreement which is being renewed. (c) This section shall apply only to leases and rental agreements executed on or after January 1, 1976.