No waiver
Waiver is a place where the laws of the New World and the Old diverge.
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Boilerplate Anatomy™
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Does one really need a contractual provision dealing with the consequences of a fellow’s good-natured indulgence when carrying on commerce in the international markets? Just because I was kind enough to indulge you in not insisting on my strict legal rights, does the law punish me by taking away those rights for ever? Should I recorded for posterity that by granting such an accommodation I mean no waiver? Those with an English qualification and a stout constitution will snort, make reference to Hughes v Metropolitan Railway and say it is inconsequential fluff that goes without saying;[1] Americans, accustomed to the Uniform Commercial Code will tread more carefully, lest they create a relationship-altering “course of dealing”.
Different approaches to evidence of the contract in the UK and US
England and the US have taken different paths when it comes to respecting the sanctity of that four-cornered document representing the contract. Whereas the parol evidence rule gives the written form a kind of “epistemic priority” over any other articulation of the abstract deal in the common law, in the new world greater regard will be had of how the parties behave when performing their contract, and less significance on what at the outset they wrote down.
So whereas in England action to not insist upon strict contractual rights will have scarce effect on those rights (at best a waiver by estoppel might arise, at least until it is withdrawn[2]), in the United States Uniform Commercial Code[3] a “course of dealing” between the parties at variance with the written terms of their bargain will tend to override those written terms. Thus, by not insisting on the strict terms of her deal, an American risks losing that deal, and will be taken by the course of dealing to have agreed something else; whereas an Englishman, by granting such an indulgence, at worst suspends his strict contractual rights but does not lose them.
In this way the parol evidence rule is less persuasive in American jurisprudence than in British.
See also
- Waiver | Waiver by election | Waiver by estoppel
- Course of dealing under the Uniform Commercial Code
- Estoppel
- No waiver boilerplate clause
References
- ↑ Those with less fortitude will say, “well it does no harm, so let’s just put it in there, okay?”
- ↑ Hughes v Metropolitan Railway
- ↑ § 1-303. Course of Performance, Course of Dealing, and Usage of Trade.