Waiver - Definition - Law Dictionary Home Dictionary Definition waiver

Definition :

Waiver, in an intentional relinquishment of a known right. There can be waiver unless the person against whom the waiver is claimed had full knowledge of his rights and of facts enabling him to take effectual action for the enforcement of such rights, Dhanukdhari Singh v. Nathina Sahu, (1907) 7 Cal WN 848; Associated Hotels of India Ltd. v. S.B. Sardar Ranjit Singh, AIR 1968 SC 933: (1968) 2 SCJ 441. [Evidence Act, 1872, s. 115]

Waiver, is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct. A person who is entitled to rely on a stipulation, existing for his benefit alone, in a contract or of a statutory provision, may waive it, and allow the contract or transaction to proceed as though the stipulation or provision did not exist. Waiver of this kind depends upon consent, and the fact that the other party has acted on it is sufficient consideration, Halsubury's Laws of England, 4th Edn., Vol. 16, para 1471.

Means it is intentional relinquishment of known right or such conduct as warrants interference of relinquishment of such right, C.P. Syndicate (Pvt) Ltd. v. State of M.P., 1972 MPLJ 699.

Means relinquishment of one's own right. It is referable to a conduct signifying intentional abandonment of a right. It may be express or may even be implied but should be manifest from overt act, Ram Babu v. Ram Prasad, 1981 Jab LJ (SN) 39.

Waiver. (1) The passing by an occasion to enforce a legal right whereby the right to enforce the same is lost; a common instance of this is where a landlord waives a forfeiture of a lease by receiving rent, or distraining for rent, which has accrued due after the breach of covenant causing the forfeiture became known to him; see Davenport v. The Queen, (1877) 3 App Cas 115. Mere lying by is no waiver for this purpose; there must be some positive act on the part of the landlord, which act, however, if done, is a waiver in law, notwithstanding any protest. (2) Declining to take advantage of irregularities in proceedings. Consult Bullen and Leake's Prec. of Plead, and Broom's Leg. Max. under the titles Consensus tollit errorem, Quilibet potest renunciare juri pro se introducto. See RELEASE.

Waiver is distinct from estoppel in that in waiver the essential element is actual intent to abandon or surrender right, while in estoppel such intent is immaterial-. voluntary choice is the essence of waiver for which there must have existed an opportunity for a choice between the relinquish-ment and the conferment of the right in question, Provash Chandra Dalui v. Biswanath Banerjee, AIR 1989 SC 1834 (1840): (1989) Supp 1 SCC 487: (1989) 2 SCR 401. [Evidence Act, (10 of 1872), s. 115]

The principle of waiver connotes issuance of notice and non-response thereto. Everyone has a right to waive an advantage or protection which law seeks to give him/her. Undoubtedly, if a notice is issued and no representation was made by either the owner, tenant or a sub-tenant, it would amount to waive the opportunity and such person cannot be permitted to turn round, after the scheme reaches finality, to say that there is non-compliance of sub-rules (3) and (4) of Rule 21. It would amount to putting premium on dilatory and dishonest conduct, Jaswant Singh Mathura Singh v. Ahmedabad Municipal Corporation, 1992 Supp (1) SCC 5. [Bombay Town Planning Rules, 1955, R. 21(3) & (4)]

1. The voluntary relinquishment or abandonment

2. The instrument by which a person relinquishes or abandon a legal right or advantage, Black's Law Dictionary, 7th Edn., p. 1575.