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Waiver
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An intentional relinquishment or abandonment of a known right or privilege.
When a person disclaims or renounces to a right that they may have otherwise had.
In New Hampshire Fire Insurance, Justice Riner of the Supreme Court of Wyoming adopted these words:
"A waiver exists only where one with full knowledge of a material fact does or forbears to do something inconsistent with the existence of the right or of his intention to rely on that right."
In Banning, the House of Lords wrote that the term comes from the old English word waif, which means a thing or person abandoned. The Court then adopted these words:
"The primary meaning of the word waiver in legal parlance is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted.
"A person who is entitled to the benefit of a stipulation in a contract or of a statutory provision may waive it, and allow the contract or transaction to proceed as though the stipulation or provision did not exist."
A frequent use of a waiver is where an individual seeks to participate in a dangerous sport and the operator of the facility will seek to minimize his liability by tendering to the participant a waiver of the facility's liability in the event of any accident or inury to the participant.
Waivers are not always in writing. Sometimes a person's actions can be interpreted as a waiver - waiver by conduct.
In Saskatchewan River Bungalows, Justice Major of Canada's Supreme Court used these words:
"Waiver occurs where one party to a contract or to proceedings takes steps which amount to foregoing reliance on some known right or defect in the performance of the other party.
"The elements of waiver ... are thus full knowledge of the deficiency which might be relied upon and the unequivocal intention to relinquish the right to rely on it.
"That intention may be expressed in a formal legal document, it may be expressed in some informal fashion or it may be inferred from conduct. In whatever fashion the intention to relinquish the right is communicated, however, the conscious intention to do so is what must be ascertained."
Waiver will be found only where the evidence demonstrates that the party waiving had (1) a full knowledge of rights; and (2) an unequivocal and conscious intention to abandon them. The creation of such a stringent test is justified since no consideration moves from the party in whose favour a waiver operates. An overly broad interpretation of waiver would undermine the requirement of contractual consideration. "
In the context of criminal law and the allegations that an accused waived one or another of his legal rights, the US Supreme Court wrote, in Barker:
"Courts should indulge every reasonable presumption against waiver and they should not presume acquiescence in the loss of fundamental rights. Presuming waiver from a silent record is impermissible."
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