waiver n : a formal written statement of relinquishment [syn: release, discharge]

English

Etymology

Pronunciation

• Rhymes: -eɪvə(r)

Homophones

• waver

Noun

1. The act of waiving, or not insisting on, some right, claim, or privilege.
2. A legal document releasing some requirement, such as waiving a right (giving it up) or a waiver of liability (agreeing to hold someone blameless). Also used for such a form even before it is filled out and signed.

   I had to sign a waiver when I went skydiving, agreeing not to sue even if something went wrong.

3. Something that releases a person from a requirement.

   I needed a waiver from the department head to take the course because I didn't technically have the prerequisite courses.

   I needed a waiver from the zoning board for the house because the lot was so small, but they let me build because it was next to the park.

Derived terms

• waivered

Verb

waiver

1. misspelling of waver
2. See waive.

Usage notes

• Sometimes used in puns involving wavering about waivers, the noun, especially in newspaper headlines for sports stories.

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.

Enforceability of waivers

The following represent a general overview of considerations; specifics may vary dramatically depending on the jurisdiction.

The key factor that courts look at when determining 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 of 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 deemed 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.

See also

• Tort reform
• Disclaimer
• Due process

External links

• UK legislation from official sources is reproducible freely under waiver of copyright.

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