 | This article has multiple issues. Please helpimprove it or discuss these issues on thetalk page.(Learn how and when to remove these messages) (Learn how and when to remove this message)
|
Awaiver is the voluntaryrelinquishment orsurrender of some knownright orprivilege.
A waiver is often written, such as adisclaimer 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 anexculpatory clause,liability waiver,legal release, orhold 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 alegal 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.
In theUnited States, 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.[1]
Incivil procedure, certain arguments must be raised in the first objection that a party submits to thecourt, or else they will be deemed waived.
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:[citation needed]
In the case ofInsurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982) theUnited 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, thedefendant had argued that the court lackedpersonal 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.
In US states such asCalifornia, a waiver is not lawful when it is contrary to an express provision of law, its implicit policy, or good morals.[2] 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.[3][4]
Under Section 1115 of theSocial Security Act, the United States federal government may issue waivers to individual states so that they may provideMedicaid or theChildren's Health Insurance Program (CHIP) in different ways from how the law typically mandates provision.[5]
In the United Kingdom, standing orders adopted bylocal 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 inpublic procurement cannot be engaged.[6][7]
