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A waiver is the voluntary relinquishment or
surrender Surrender may refer to: * Surrender (law)In common law, surrender is the term describing a situation where a leasehold estate, tenant gives up possession of property held under a tenancy as a result of which the tenancy ends. A surrender differs f ...
of some known
right Rights are legal Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by its environment, is desc ...
or privilege. Regulatory agencies of state departments or the federal government 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 A disclaimer is generally any statement intended to specify or delimit the scope of rights and obligations that may be exercised and enforced by parties in a legally recognized relationship. In contrast to other terms for legally operative languag ...

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 A liability waiver is a legal document ''Legal instrument'' is a legal term of art Jargon is the specialized terminology Terminology is a general word for the group of specialized words or meanings relating to a particular field, and also the ...
,
legal release A legal release is a legal instrument ''Legal instrument'' is a legal term of art that is used for any formally executed written document that can be formally attributed to its author, records and formally expresses a legally enforceable act, pr ...
, or
hold harmless In contract law, indemnity is a contractual obligation of one Party (law), party (''indemnifier'') to Financial compensation, compensate the loss incurred to the other party (''indemnity holder'') due to the acts of the indemnitor or any other p ...
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. Sometimes the elements of "voluntary" and "known" are established by a
legal fiction A legal fiction is a fact A fact is something that is true True most commonly refers to truth Truth is the property of being in accord with fact or reality.Merriam-Webster's Online Dictionarytruth 2005 In everyday language, truth i ...
. In this case, one is presumed to know one's rights and that those rights are voluntarily relinquished if not asserted at the time. In
civil procedure Civil procedure is the body of law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by its env ...
, certain arguments must be raised in the first objection that a party submits to the
court A court is any person or institution, often as a government A government is the system or group of people governing an organized community, generally a state State may refer to: Arts, entertainment, and media Literature * ''Sta ...

court
, or else they will be deemed waived.


Enforceability

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 An illegal agreement under the common law of contract, is one that the court will not enforce because the purpose of the agreement is to achieve an illegal end. The illegal end must result from performance of the contract itself. The classic exampl ...
.


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 The Supreme Court of the United States (SCOTUS) is the highest court in the Federal judiciary of the United States, federal judiciary of the United States of America. It has ultimate and largely Procedures of the Supreme Court of the United ...

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 In court proceedings, a defendant is a person A person (plural people or persons) is a being that has certain capacities or attributes such as reason Reason is the capacity of consciously applying logic Logic is an interdisciplinary fi ...
had argued that the court lacked
personal jurisdiction Personal jurisdiction is a court's jurisdiction over the ''parties'', as determined by the facts in evidence, which bind the parties to a lawsuit, as opposed to subject-matter jurisdiction Subject-matter jurisdiction (also called jurisdict ...
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 California is a state State may refer to: Arts, entertainment, and media Literature * ''State Magazine'', a monthly magazine published by the U.S. Department of State * The State (newspaper), ''The State'' (newspaper), a daily newspaper i ...

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.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.


See also

*
Disclaimer A disclaimer is generally any statement intended to specify or delimit the scope of rights and obligations that may be exercised and enforced by parties in a legally recognized relationship. In contrast to other terms for legally operative languag ...

Disclaimer
*
Due process Due process is the legal requirement that the state State may refer to: Arts, entertainment, and media Literature * ''State Magazine'', a monthly magazine published by the U.S. Department of State * The State (newspaper), ''The State'' (newspa ...
*
Estoppel Estoppel is a judicial device in common law legal systems whereby a court A court is any person or institution, often as a government institution, with the authority to Adjudication, adjudicate legal disputes between Party (law), parties and ...
*
Illegal agreement An illegal agreement under the common law of contract, is one that the court will not enforce because the purpose of the agreement is to achieve an illegal end. The illegal end must result from performance of the contract itself. The classic exampl ...
*
Loan waiver A loan waiver is the waiving of the real or potential liability of the person or party who has taken out a loan through the voluntary action of the person or party who has made the loan. Examples of loan waivers include the Stafford Loan A Stafford ...
*
Tort reform Tort reform refers to proposed changes in the civil justice system that aim to reduce the ability of victims to bring tort A tort, in common law In law, common law (also known as judicial precedent or judge-made law, or ) is the body ...
*
Waiver and forfeiture Forfeiture and waiver are two concepts that U.S. courts apply in determining whether reversible error has occurred. Waiver is the voluntary relinquishment, surrender or abandonment of some known right or privilege. Forfeiture (law), Forfeiture is th ...


References

{{Reflist Contract law Civil procedure Equitable defenses Copyright law