waiver

The voluntary surrender of a known right; conduct supporting an inference that a particular right has been relinquished.

The term waiver is used in many legal contexts. A waiver is essentially a unilateral act of one person that results in the surrender of a legal right. The legal right may be constitutional, statutory, or contractual, but the key issue for a court reviewing a claim of waiver is whether the person voluntarily gave up the right. If voluntarily surrendered, it is considered an express waiver.

In Criminal Law the Privilege against Self-Incrimination is guaranteed by the Fifth Amendment to the U.S. Constitution. The Supreme Court, in miranda v. arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), held that the police must inform arrested persons that they need not answer questions and that they may have an attorney present during questioning. These requirements are known as the Miranda warning. A criminal defendant may waive the right to remain silent and make a confession, but the law enforcement officials must demonstrate to the court that the waiver was the product of a free and deliberate choice rather than a decision based on intimidation, coercion, or deception. They must also convince the court that the defendant was fully aware of the rights being abandoned and the consequences that would result from the Abandonment. Based on the totality of these circumstances, a court may conclude that the defendant waived his Miranda rights.

A waiver may be shown by a person's actions. For example, a criminal defendant waives the privilege against self-incrimination merely by going on the witness stand. Such an action is called an implied waiver.

In insurance law waiver is used in numerous contexts. For example, under the doctrine of waiver, if the insurer has knowledge of facts that would bar its primary liability for a policy it has written but proceeds to treat the policy as being in force, it will not be allowed to plead such facts in court to avoid its primary liability.

A waiver of premium clause is a provision in an insurance policy that permits the waiver of premium payments upon the disability of the insured. Commonly such waivers take effect only after a certain time of disability.

Various waiver provisions are inserted into contracts. The parties may agree to surrender a substantive right granted by statute, such as a limitation on the amount of property that may be exempted from debt collection, or a procedural right that requires a certain number of days notice before an action can be taken.

Cross-references

Custodial Interrogation.

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waiver n. the intentional and voluntary giving up of a right, either by an express statement or by conduct (such as not enforcing a right). The problem which may arise is that a waiver may be interpreted as giving up the right to enforce the same right in the future. Example: the holder of a promissory note who several times allows the debtor to pay many weeks late does not agree to waive the due date on future payments. A waiver of a legal right in court must be expressed on the record. (See: waive)

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waiver noun abandonment, abandonment of a known right, abdication, abrogation, absolution, acquittal, act of relinquishing a right, clearance, deed of release, excusal, forgoing, giving up, intentional relinquishhent, loss of right, release, relinquishment, renunciation, surrender, voluntary relinquishment
Associated concepts: express waiver, implied waiver, waiver of immunity
Foreign phrases: Omnis consensus tollit errorem.Every connent removes error. Potest quis renunciare pro se et suis juri quod pro se introductum est. One may relinquish for himself and his successors a right which was introduced for his own benefit. Cuilibet licet juri pro se introducto renunciare. Anyone may waive a legal right which is for his protection. Ab assuetis non fit injuria. No legal injury is done by things long acquiesced in. Omnes licentiam habere his quae pro se innulta sunt, renunciare. All are free to renounce those priviieges which have been allowed for their benefit.

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See also: cancellation, cession, quitclaim, rejection, release, renunciation

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WAIVER., The relinquishment or refusal to accept of a right.
     2. In practice it is required of every one to take advantage of his rights at a proper time and, neglecting to do so, will be considered as a waiver. If, for example, a defendant who has been misnamed in the writ and declaration, pleads over, he cannot afterwards take advantage of the error by pleading in abatement, for his plea amounts to a waiver.
     3. In seeking for a remedy the party injured may, in some instances, waive a part of his right, and sue for another; for example, when the defendant has committed a trespass on the property of the plaintiff, by taking it away, and afterwards he sells it, the injured party may waive the trespass, and bring an action of assumpsit for the recovery of the money thus received by the defendant. 1 Chit. Pl. 90.
     4. In contracts, if, after knowledge of a supposed fraud, surprise or mistake, a party performs the agreement in part, he will be considered as having waived the objection. 1 Bro. Parl. Cas. 289.
     5. It is a rule of the civil law, consonant with reason, that any one may renounce or waive that which has been established in his favor: Regula est juris antique omnes licentiam habere his quae pro se introducta sunt, renunciare. Code 2, 3, 29. As to what will amount to a waiver of a forfeiture, see 1 Conn. R. 79; 7 Conn. R. 45; 1 Jo Cas. 125; 8 Pick. 292; 2 N. H, Rep. 120 163; 14 Wend. 419; 1 Ham. R. 21. Vide Verdict.