Template:Waiver chains

Waiver chains

You will see deep in the boilerplate confections like this:

“Any waiver of any breach of this agreement shall not be deemed to operate as a waiver of any subsequent breach thereof.”

You know what the JC thinks about contractual denials of things no-one was asserting in the first place: they are a waste of trees. Is this, as it seems, such a waste of trees, or are waivers some kind of magical force-field of contractual energy, that spark and fizz and o’er-leap logical gates, like pole-vaulting crabs — that one waiver could trigger a chain of waivers, snaking into the distance, or mushrooming exponentially into a violent litigatory fireball?

Now, to be sure, it has been a while since the JC sat in a contract law lecture — but, readers, we don’t remember the golden thread of precedent that led down this particular alley. 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 officers are prone to.

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, 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.