Template:Waiver capsule

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 — at least not under English law. (Americans might like to check our page on course of dealing however). You don’t lose them forever just because you don’t exercise them: you might, however, be delayed in being able to exercise your rights.

To find out more, read on about the two kinds of waiver: waiver by election — really, to state the bleeding obvious that by selecting alternative (1) under a contract, you are foregoing its mutually exclusive alternative (2) (for example, in selecting velveteen leopardskin upholstery for your new Tesla, you are waiving the opportunity to have chintz); and waiver by estoppel that, by your conduct in the furtherance of an existing contract, your election not to exercise a right gives right to an expectation you won’t exercise it, at least without giving further notice and a reasonable time for your counterparty to sort themselves out and get ready to perform it.

Generally, litigation tends to concern waiver by estoppel, and arguments about waiver by election trouble only cakeists.

Spiritually related, we think, to the reliance and change of position aspects of a defence to a claim in restitution.