Waiver: Origin, Meaning and Explanation

This article titled ‘Waiver: Origin, Meaning and Explanation’ is written by Sahajpreet Bhusari and discusses the concept of waiver.

I. Origin and Meaning

A waiver is a legal term of French origin. In French, the term literally means ‘to renounce a right/ claim’[1].

II. Explanation

It is a deliberate and informed choice made by a party to renounce any right or claim that another party is obligated to execute. A waiver is defined as the voluntary relinquishment or abandonment, express or implicit, of a legal right or benefit, according to Black’s Law Dictionary.

The party that is accused of waiving a right must have both knowledge of the right and the purpose to forego it. As a result, the following are required aspects of a Waiver:

1. A voluntary act;
2. Renunciation of a right
3. Either explicitly or implicitly;
4. Awareness of existing rights;
5. Intention to abstain from exercising such a privilege.

III. Application

The waiver has its origins in section 63 of the Indian Contract Act, 1872 (“ICA”), which allows a party (promisee) to waive the other party’s contractual obligation (promisor). A party has three options for waiving its rights under Section 63. (promisee)

1. Waive or relinquish performance – The promisor is not obligated to fulfil the contractual commitment;
2. To prolong the time for performance – The promisor is expected to fulfil the contractual promise within such a reasonable amount of time, as determined by the promisee.
3. To embrace any other contentment in lieu of performance – The promisor must execute any other promise to the contentment of the promisee in lieu of a contractual promise. The waiver can only be granted to any claim arising out of a promise. Such promise may arise out of a contract executed between a party, or otherwise, in pursuance of any other legally binding agreement.

IV. Case Laws

The Indian judiciary has enlarged on the notion of waiver in several judgments. The Hon’ble Supreme Court stated in M/S Motilal Padampat Sugar Mills v. State Of Uttar Pradesh And Ors[2] that waiver is the abandoning of a right and that it might be express or assumed from action, but that it must be “a deliberate act with awareness.”

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References

[1] Waiver, Available Here.

[2] 1979 AIR 621.

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1. Law Library: Notes and Study Material for LLB, LLM, Judiciary and Entrance Exams
2. Legal Bites Academy – Ultimate Test Prep Destination