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Waiver by estoppel: Difference between revisions
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The other kind of [[waiver]]. The ''difficult'' one. Though not half as perilous as [[Mediocre lawyer|your earnest counsel]] may have you believe. | {{a|contract|}}The other kind of [[waiver]]. The ''difficult'' one. Though not half as perilous as [[Mediocre lawyer|your earnest counsel]] may have you believe. | ||
[[Waiver by estoppel]] | [[Waiver by estoppel]] may arise when a party who is entitled to exercise contractual rights, by its conduct ''leads the other party to believe it will not'', so that ''the other party relies on that representation'' to its detriment. It is an outflowering of the great case of {{citern|Hughes|Metropolitan Railway|1877|2 App. Cas.|439}}. | ||
So: some kind of '''[[representation]]'''; and a '''reliance''' on the representation to the receiving party’s detriment. | |||
===Ingredients=== | ===Ingredients=== | ||
*A legal relationship between the “rightsholder” and the “beneficiary” | For us to even be in the ballpark for waiver by estoppel, therefore, you need: | ||
*A clear [[representation]] by the rightsholder that it will not enforce its | *'''Relationship''': A legal relationship — maybe a [[contract]], maybe something statutory — between the “rightsholder” and the “beneficiary” creating the rights and obligations; | ||
*The beneficiary must rely on the representation to its detriment | *'''Representation''': A clear [[representation]] by the rightsholder that it will not strictly enforce its rights — the representation need not be written or explicit, but it must be ''unequivocal''<ref>Chitty muses that it needs to be as certain as would have given it contractual effect had it been supported by [[consideration]].</ref> In any case, the point here is to differentiate between someone unambiguously giving the impression that they will not enforce a contractual term — entitling a counterparty to rely on that representation — and a rightsholder simply ''refraining from enforcing a term of the contract it was entitled to''. The latter will ''not'' give rise to a [[Waiver by estoppel|waiver]]. | ||
*Unlike [[waiver by election]], generally [[waiver by estoppel]] | *'''Reliance''': The beneficiary must actually rely on the [[representation]] to its detriment ... | ||
*'''Inequity''': ... so as to make it ''inequitable for the rightsholder to go back on the [[representation]]''. | |||
===Effect=== | |||
*Unlike [[waiver by election]], generally a [[waiver by estoppel]] only suspends the rightsholder’s legal rights and does not permanently extinguish them — unless it would be inequitable to allow the waiver to be withdrawn. | |||
===Observations=== | ===Observations=== | ||