Waiver

A topic that can give a common lawyer hives and an under-confident credit officer an entire psychiatric episode.

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Our legal friends are liable to spout much paranoid nonsense about waivers — some of it will trampling upon the very founding principles of the law they learned at their first-year contract law tutor’s breast — if the proposition is advanced that “we have a right, but we didn’t use it, and now we might have lost it”.

Lost it? Forever? Can a contractual right, unexercised, really just evaporate from the page while counsel wring their hands, like so much dew in the morning sun, or that alcoholic gel you find in the public conveniences of officious yet parsimonious organisations?

Your contractual rights are a not quite that ephemeral. You don’t lose them just because you don’t exercise them.

There are two kinds of waiver: waiver by election and waiver by estoppel.

See also

• Waiver | Waiver by election | Waiver by estoppel
• Course of dealing under the Uniform Commercial Code
• Estoppel
• No waiver boilerplate clause