Template:Waiver chains: Difference between revisions
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Now, to be sure, it has been a while since the [[Jolly Contrarian|JC]] sat in a [[contract]] law lecture — but, readers, we don’t remember the [[woolmington|golden thread of precedent]] that led down this particular alley.<ref>Legal scholars/students/friends: Do [mailto:enquiries@jollycontrarian.com write in] if you know the genesis of this piece of [[boilerplate]], won’t you? </ref> Nor, as far as we know has there been a new one in the intervening decades to justify this [[boilerplate]]. We suspect this is paranoid, throwaway [[verbiage]] — perhaps prompted by a near miss once, or a bad dream, or one of those psychiatric episodes [[Credit officer|credit officers]] are prone to. | Now, to be sure, it has been a while since the [[Jolly Contrarian|JC]] sat in a [[contract]] law lecture — but, readers, we don’t remember the [[woolmington|golden thread of precedent]] that led down this particular alley.<ref>Legal scholars/students/friends: Do [mailto:enquiries@jollycontrarian.com write in] if you know the genesis of this piece of [[boilerplate]], won’t you? </ref> Nor, as far as we know has there been a new one in the intervening decades to justify this [[boilerplate]]. We suspect this is paranoid, throwaway [[verbiage]] — perhaps prompted by a near miss once, or a bad dream, or one of those psychiatric episodes [[Credit officer|credit officers]] are prone to. | ||
The [[estoppel]] is specific to the particular circumstance. If you have a recurring right (you know, like to make a [[margin call]]), then just because you waived it once — even if you somehow permanently waived it — that doesn’t mean you have waived it for all time. Just because you didn’t enforce this time, that doesn’t mean you are prevented from ever enforcing in the future. This is at least implicit in the following passage from the leading modern case on waiver, {{casenote|Kosmar Villa Holidays plc|Trustees of Syndicate 1243}}: | |||
{{quote|Estoppel, however, is a promise, supported not by [[consideration]] but by [[reliance]]. It is a promise not to rely upon a defence (per Lord Diplock) or a right (per Lord Goff). It requires a [[representation]], in words or conduct, which must be unequivocal and must have been relied upon in circumstances where it would be inequitable for the promise to be withdrawn. The need for such unfairness probably means that the reliance of the representee has to constitute a detriment, but even the detriment has, I would think, to be such as to make it inequitable for the promise to be withdrawn. For these reasons, the estoppel may not be irrevocable, but may be suspensory only. An unequivocal representation without the necessary reliance, and reliance without the necessary unequivocal representation, are each insufficient.}} | |||
It may be a real fear, but we are not persuaded it would bear real fruit. It makes little sense. After all, on the English law theory of the game,<ref>[[Course of dealing]]s caveats aside, for our American friends.</ref> a waiver is an impermanent, for the time being, sort of thing. You can stop a single waiver, as long as you give your counterparty time to get back on her horse and fashion enough of a run-up so she can approach the fence at a reasonable clip. | It may be a real fear, but we are not persuaded it would bear real fruit. It makes little sense. After all, on the English law theory of the game,<ref>[[Course of dealing]]s caveats aside, for our American friends.</ref> a waiver is an impermanent, for the time being, sort of thing. You can stop a single waiver, as long as you give your counterparty time to get back on her horse and fashion enough of a run-up so she can approach the fence at a reasonable clip. | ||
So, even if one waiver ''could'' spark another one — and who knows, there could be events so closely related you trigger them all at once, we suppose — they can be doused easily enough later on. But really, your better bet is not to make contractual relations with the sort of person who would take that kind of point. Our home-baked latin maxim refers: ''[[non sis arsholeus nec mercatum cum arsholibus facias]]''.<ref>Don’t ''be'' a jerk, and don’t do business with one either.</ref> | So, even if one waiver ''could'' spark another one — and who knows, there could be events so closely related you trigger them all at once, we suppose — they can be doused easily enough later on. But really, your better bet is not to make contractual relations with the sort of person who would take that kind of point. Our home-baked latin maxim refers: ''[[non sis arsholeus nec mercatum cum arsholibus facias]]''.<ref>Don’t ''be'' a jerk, and don’t do business with one either.</ref> | ||