waiver
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A waiver is the voluntary relinquishment or surrender of some known
right Rights are law, legal, social, or ethics, ethical principles of freedom or Entitlement (fair division), entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people according to some legal sy ...
or privilege. A waiver is often written, such as a disclaimer that has been accepted, but it may also be spoken between two or more parties. 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. Sometimes the elements of "voluntary" and "known" are established by a
legal fiction A legal fiction is a construct used in the law where a thing is taken to be true, which is not in fact true, in order to achieve an outcome. Legal fictions can be employed by the courts or found in legislation. Legal fictions are different from ...
. 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 the
United States The United States of America (USA), also known as the United States (U.S.) or America, is a country primarily located in North America. It is a federal republic of 50 U.S. state, states and a federal capital district, Washington, D.C. The 48 ...
, regulatory agencies of state departments or the federal government may issue waivers to exempt companies from certain regulations. For example, a 2010 law restricted the size of banks, but when banks exceeded these sizes, they obtained waivers. In civil procedure, certain arguments must be raised in the first objection that a party submits to the
court A court is an institution, often a government entity, with the authority to adjudicate legal disputes between Party (law), parties and Administration of justice, administer justice in Civil law (common law), civil, Criminal law, criminal, an ...
, 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.


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. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that turn on question ...
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 California () is a U.S. state, state in the Western United States that lies on the West Coast of the United States, Pacific Coast. It borders Oregon to the north, Nevada and Arizona to the east, and shares Mexico–United States border, an ...
, 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.


State health programs

Under Section 1115 of the Social Security Act, the United States federal government may issue waivers to individual states so that they may provide Medicaid or the Children's Health Insurance Program (CHIP) in different ways from how the law typically mandates provision.


Local government

In the United Kingdom, standing orders adopted by local councils typically designate limits on the level of authority delegated to staff to take action without approval by elected members, with provision being made to waive these limits in appropriate circumstances such as urgency or where the requirements for competition in public procurement cannot be engaged. Brighton and Hove City Council
Constitution: Part 7.5 Contract Standing Orders
Standing Order 20, accessed 19 August 2023


See also

* Disclaimer *
Due process Due process of law is application by the state of all legal rules and principles pertaining to a case so all legal rights that are owed to a person are respected. Due process balances the power of law of the land and protects the individual p ...
* Estoppel * Illegal agreement * Loan waiver * Tort reform * Waiver and forfeiture


References

{{Reflist Contract law Civil procedure Equitable defenses Copyright law