waive

1 do without or cease to hold or adhere to; "We are dispensing with formalities"; "relinquish the old ideas" [syn: relinquish, forgo, foreswear, dispense with]

2 lose or lose the right to by some error, offense, or crime [syn: forfeit, give up, throw overboard, forgo] [ant: claim]

English

Etymology

From weiven to abandon

Pronunciation

• wāv, /weɪv/, /weIv/

  Rhymes: Rhymes: -e?v

Homophones

• wave

Noun

1. A waif; a castaway. - John Donne
2. A woman put out of the protection of the law.

Verb

1. To relinquish; to give up claim to; not to insist on or claim; to refuse; to forego.

   Quotations

   • He waiveth milk, and flesh, and all. - Geoffrey Chaucer
   • We absolutely do renounce or waive our own opinions, absolutely yielding to the direction of others. - Barrow

2. To throw away; to cast off; to reject; to desert.
3. To throw away; to relinquish voluntarily, as a right which one may enforce if he chooses; to give up a right, privilege or restriction; as with a waiver.

   If you waive the right to be silent, anything you say can be used against you in a court of law.

4. To desert; to abandon. - Burrill
5. To turn aside; to recede.

   Quotations

   • To waive from the word of Solomon. - Geoffrey Chaucer

Derived terms

• waivable
• waiver

Usage notes

The term was applied to a woman, in the same sense as outlaw to a man. A woman could not be outlawed, in the proper sense of the word, because, according to Bracton, she was never in law, that is, in a frankpledge or decennary; but she might be waived, and held as abandoned. --Burrill.

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, it is presumed one knows his or her rights and that those rights are voluntarily relinquished if they are 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 of waivers

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

The key factor that courts look at when determining the applicability of a waiver are:

• A waiver can only release negligent activity, not intentional activity.
• The waiver must be signed voluntarily and with the full knowledge of the right being waived.
• The waiver must be unambiguous and clear.
• The parties to the waiver must have equal bargaining power.
• A waiver cannot be applied to an essential service that would make it a matter of public policy.

Waivers have been found unenforceable in some cases. For example, a waiver was deemed too general as it included phrases such as "and otherwise".

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 the case itself, 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

• Tort reform
• Disclaimer
• Due process

External links

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

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