Waiver

A topic that can give a common lawyer hives. She is liable to spout much paranoid nonsense — some of it trampling over the very founding principles of the law of contract, which she learned at her second year contract law tutor’s breast — if the proposition is advanced that “we have a right, but we didn’t use it”.

Does this mean we have lost it forever? If unexercised, does a contractual right evaporate from the page while our counsel wring their hands, like so much dew in the morning sun, or that alcoholic hand gel you find in the public conveniences of officious yet parsimonious organisations?

Your contractual rights are a little less ephemeral than that. 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