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".
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.