An agreement, conduct or undertaking not to assert a legal right. Waivers can be difficult to enforce where it is unclear that the waiving party intended to waive, or was aware that their conduct was inconsistent with a future intent to assert that legal right.

Typically for a waiver to be effective the party asserting it should be able to show:

  1. the person bound by it agreed to the waiver (and that’s hard if the person is a minor and unable to agree to such a waiver.)
  2. Show that the person agreeing to the waiver understood what they were agreeing to and the nature of the risk.
  3. Show that the party agreeing to the waiver received consideration for that agreement.
  4. That the waiver doesn’t protect against liability resulting from:
  • a violation of law or regulation (public policy)
  • gross negligence
  • intentional harmful acts

5. That it doesn’t create a public charge

Waiver can also be an issue in Arbitration, where a party has initiated litigation in a court or forum other than the arbitral forum specified in an arbitration agreement, allowed the litigation to progress substantially and then, belatedly sought to arbitrate the dispute.

In several jurisdictions undue delay in bringing proceedings for example intellectual property infringement proceedings can be considered a waiver.


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