Written by attorney Gregory Garth Brown

Waiver as a Defense

Waiver as a Defense

What is Waiver?

It is common for parties to an agreement to “waive" some or all of their contractual rights. For example, I may hire someone to paint my house and, in return, I agree to pay them $500 and provide them with a meal every day they spend painting my house. If I do not provide the promised meal, and the painter agrees to this, then he has waived his rights to that meal. Additionally, if I consistently breach my agreement to provide a meal every day that the painter spends painting the house, and he consistently ignores my breach, then his conduct could be considered an intent to waive my obligation to provide him a meal.

Waiver is defined more formally as, “A voluntary relinquishment of a known right or the loss of an opportunity or a right as a result of a party’s failure to perform an act it is required to perform."

To constitute a waiver, there must be an existing right, knowledge of the right, and an actual intention to relinquish the right. “The waiver may be either express, based on the actual words of the waiving party, or implied, based on conduct indicating an intent to relinquish the right."

Existing Right

An existing right is a claim or legal guarantee toward some tangible or intangible thing. That claim, right or legal guarantee would be the subject of the waiver. A common example of a right would be an agreement to rent an apartment. The tenant and the landlord each have rights to the agreement. The tenant’s right is to live in the apartment. The landlord has rights to the rent the tenant has agreed to pay in return for living in the house. If the landlord does not collect rent, there may be an argument that he waived his right to that rent.

Knowledge of the Right

To be valid, a waiver must be a clear expression made with a full knowledge of the facts. It is settled law in California that a purported “waiver" of a statutory right is not legally effective unless it appears that the party executing it had been fully informed of the existence of that right, its meaning, the effect of the “waiver" presented to him, and his full understanding of the explanation.

In fact, no one can be held to have waived a right, benefit, or advantage, where he acted under a misinterpretation of the facts, especially where he had been put off his guard or misled by the conduct of the other party.


Waiver depends upon the intention of one party only. Waiver does not require any act or conduct by the other party. Intent could either be actual or conduct so inconsistent with any intent to enforce the right as to induce a reasonable belief that it has been relinquished.


Waiver is an effective defense that is commonly used in contract- based disputes. The description above is general and for informational purposes only. It is always best to seek the advice of an experienced litigation attorney in your area.

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