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Waiver by estoppel: Difference between revisions
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===Ingredients=== | ===Ingredients=== | ||
*A legal relationship between the “rightsholder” and the “beneficiary” giving rise to rights and obligations; | *A legal relationship between the “rightsholder” and the “beneficiary” giving rise to rights and obligations; | ||
*A clear [[representation]] by the rightsholder that it will not enforce its strict rights — it can be implied but it must be unequivocal<ref>Chitty muses that it needs to be as certain as would give it contractual effect if supported by consideration</ref> In any case the point here is to differentiate between someome representing that they will not enforce a contractual term — entitling a counterparty to rely on that representation — and simply granting an indulgence and not strictly enforcing a term, which will not give rise to a waiver. Let me say that again: '''simply not enforcing a term does not give rise to an [[estoppel]] or a [[waiver]]'''. | *A clear [[representation]] by the rightsholder that it will not enforce its strict rights — it can be implied but it must be unequivocal<ref>Chitty muses that it needs to be as certain as would give it contractual effect if supported by consideration</ref> In any case the point here is to differentiate between someome representing that they will not enforce a contractual term — entitling a counterparty to rely on that representation — and simply granting an indulgence and not strictly enforcing a term, which will not give rise to a waiver. Let me say that again: '''simply not enforcing a term does not give rise to an [[estoppel]] or a [[waiver]]'''. “It is difficult to imagine how silence and inaction can be anything but equivocal”<ref>{{casenote|Allied Marine Transport|Vale do Rio Doce Navegaçao SA (The Leonidas D.)}}</ref>. | ||
*The beneficiary must rely on the representation to its detriment, so as to make it inequitable for the rightsholder to go back on the representation. | *The beneficiary must rely on the representation to its detriment, so as to make it inequitable for the rightsholder to go back on the representation. | ||
*Unlike [[waiver by election]], generally [[waiver by estoppel]] is suspensory and not permanent — unless it would be inequitable to allow the waiver to be withdrawn. | *Unlike [[waiver by election]], generally [[waiver by estoppel]] is suspensory and not permanent — unless it would be inequitable to allow the waiver to be withdrawn. | ||