Definición y significado de waiver

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A waiver is the voluntary relinquishment or surrender of some known right or privilege.

While a waiver is often in writing, sometimes a person's actions can act as a waiver. An example of a written waiver is a disclaimer, which becomes a waiver when accepted. Other names for waivers are exculpatory clauses, releases, or hold harmless clauses.

Sometimes the elements of "voluntary" and "known" are established by a legal fiction. In this case, one is presumed to know one's rights and that those rights are voluntarily relinquished if not asserted at the time.

In civil procedure, certain arguments must be raised in the first objection that a party submits to the court, or else they will be deemed waived.

  Enforceability

The following represent a general overview of considerations; specifics may vary dramatically depending on the jurisdiction.

Key factors that some courts (depending on jurisdiction) may look at while determining the applicability of a waiver:

• In some jurisdictions, one may not prospectively waive liability for some or all intentional activities.
• Waivers generally must be made voluntarily and with the full knowledge (or the ability to know) of the right being waived.
• The waiver should be unambiguous and clear to a reasonable person.
• In some jurisdictions (not including the United States), it may be necessary that the parties to the waiver have equal bargaining power.
• A waiver may have limited application where one contracts for an "essential service" such that it may violate public policy for liability to be waived.

  Examples

  Personal jurisdiction

In the case of Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982) the United States Supreme Court decided that when a court orders a party to produce proof on a certain point, and that party refuses to comply with the court's order, the court may deem that refusal to be a waiver of the right to contest that point and assume that the proof would show whatever the opposing party claims that it would.

In that court case, the defendant had argued that the court lacked personal jurisdiction over it but refused a court order to produce evidence of this lack of jurisdiction. The defendant argued the circular logic that, because the court lacked jurisdiction, the court had no authority to issue an order to show proof of the lack of jurisdiction. The Supreme Court rejected that argument and determined that the defendant's refusal to comply waived the right to contest jurisdiction, just as if it had never contested jurisdiction at all.

  See also

• Disclaimer
• Due process
• Loan waiver
• Tort reform
• Waiver and forfeiture

  References

Howe, B (17 May 2011). "Information on Waiver Forms". Waiver Form Information. Open Publishing. http://www.waiverform.org/. Retrieved 22 February 22, 2012.  → Howe, B (17 May 2011). Open Publishing. Retrieved 22 Feb 2012

  External links

• UK legislation from official sources is reproducible freely under waiver of copyright.