Tuesday, June 19, 2012


A waiver is the giving up of a right. You may have express waivers that are set forth in a contract. For example, many companies include a waiver of jury trial provision so that in the event there is a dispute between the parties, the dispute will only be heard by a judge who will make their decision based upon the law, the contract and the facts. Companies want waiver of jury trials as in many cases they feel that their will get a fairer decision as any personal prejudices of the jurors won’t be taken into account. They may also feel that the size of the awards will be less than what a jury might award.

Waivers can also occur through a party’s actions. For example. if you have a right, and fail to enforce it, in the future you may be prevented from enforcing that right by you previous failures to enforce it. Most of contracts will include Waiver clauses where they make the intent clear by stating that the failure to enforce a right shall not
constitute a waiver of future rights.

Waivers are also traditionally used in the settlement of claims where for a party to make an agreed payment of an agreed settlement amount, they require the other party to waive and release any future claims on the subject matter of the settlement.

Other types of waivers that you may find in contracting are:
1.Waivers of liability which may be used when a person is entering a business premise where there could be potential injury,
2. Waivers of fees. For example, a form of discount could be a waiver of certain fees to be paid for a period of time in the future.
3.Waiver and release of liens. This has subcontractors give up the right to file a mechanics or materialman’s lien against real property they performed work upon for which they have not yet been paid.
4.Insurances frequently have waivers. For example for certain losses there could be a waiver of deductible so the insurance company pays the entire loss.

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