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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 | *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 someone 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. The latter will ''not'' give rise to a waiver. | ||
*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[[waiver by estoppel]] is suspensory and not permanent — unless it would be inequitable to allow the waiver to be withdrawn.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[[waiver by estoppel]] is suspensory and not permanent — unless it would be inequitable to allow the waiver to be withdrawn. | ||
===Observations=== | |||
*'''A representation must be some kind of positive act''': 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 [[estoppel]] is specific to the particular circumstance. If you have a recurring right (you know, like to make a [[margin call]]), then just because you waived it once — even if you somehow permanently waived it — that doesn't mean you have waived it for all time. Just because you didn’t enforce this time, that doesn’t mean you are prevented from ever enforcing in the future. | |||
{{waiver}} | {{waiver}} | ||
{{ref}} | {{ref}} | ||