Distinguish Estoppel from Waiver

Question: Distinguish Estoppel from Waiver.

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Answer

Estoppel being a rule of evidence may if established, assist a plaintiff in enforcing a cause of action, but it is not a cause of action. A waiver, on the other hand, is contractual and may constitute a cause of action. The basic yet essential differences between the concept of estoppel and waiver are listed below:

1. Estoppel is a rule of evidence and does not form a basis for instituting a suit, but Waiver originates from a contractual relationship and may give birth to cause of action.
2. The knowledge of reality or truth is not a factor or essential condition for claiming estoppel, whereas, in the case of a waiver, real facts or truth is known to both parties.
3. In some circumstances, the acquiescence amounts to estoppels; however, in case of a waiver, some act or conduct is necessary together with acquiescence.
4. Estoppel is used as defence and not cause for bringing a suit, but Waiver may be used as a cause to give rise to a right.

Estoppel and waiver are different. Estoppel is not a cause of action. It may, if established, assist a plaintiff in enforcing a cause of action by preventing a defendant from denying the existence of some fact essential to establish the cause of action; or, in other words, by preventing a defendant from asserting the existence of some fact the existence of which would destroy the cause of action.

Waiver, on the other hand, is contractual, and may constitute a cause of action; it is an agreement to release or not to assert a right. If an agent, with authority to make such an agreement on behalf of his principal, agrees to waive his principal’s rights, then, subject to any other question such as consideration, the principal will be bound, but he will be bound by contract, not by estoppel. There is no such thing as estoppel by a waiver.

The generally accepted connotation of waiver is that to constitute waiver there must be an intentional relinquishment or abandonment of a known existing legal right or conduct such as warrants an inference of the relinquishment of a known right or privilege.

In Pravesh Chandra Dalui and others v. Biswanath Banerjee and others [AIR 1989 SC 1834], the Supreme Court explained the difference between a waiver and is estoppel and said that the essential element in the waiver is that there must be a voluntary and intentional relinquishment of a known right or such conduct as warrants the inference of the relinquishment of such right. It means forsaking the assertion of a right or proper opportunity.

A waiver is distinct from estoppel in that in waiver the essential element is actual intent to abandon or surrender right, while in estoppel intent is immaterial. The necessary condition is the detriment of the other party by the conduct of the one estopped. Estoppel may result though the party estopped did not intend to lose any existing right.

Thus the voluntary choice is the essence of waiver for which that must have existed an opportunity for a choice between the relinquishment and the conferment of right in question.

There is no question of waiver where the party is not even aware of his right. Also, waiver of a right cannot be lightly inferred and something more than the inaction of the right holder in exercising the right is necessary.

Therefore, where a party to litigation not only fails to invoke the doctrine of estoppel before the judge but joins issue with the opposite party upon the question and accordingly an issue is raised and evidence adduced on this question, such a party is precluded from relying on the doctrine of estoppel to prevent the other party from proving that question.

For attracting the principle of waiver, there are two essential elements to be satisfied:

1. Firstly, a waiver should be voluntary and intentional and
2. Secondly, there should be two parties—one waiving and the other getting benefit from such waiver.

These requirements were not satisfied in a case before the Delhi High Court; Prithvi Raj Bhalla v. Industrial Cables (India) Ltd, AIR 2002 Del 53. The plaintiff’s predecessor inducted the defendant as a tenant in respect of the suit property. The lease required renewal after the initial 11 months, but it was never renewed.

The tenant stopped paying rent after the death of the plaintiff’s predecessor. There was no evidence to show that the predecessor consented to the tenant continuing in the premises in perpetuity. The court refused to accept the contention that the plaintiff was bound by a waiver in favour of the tenant.

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Important Mains Questions Series for Judiciary, APO & University Exams

1. Law of Evidence Mains Questions Series Part-I
2. Law of Evidence Mains Questions Series Part-II
3. Law of Evidence Mains Questions Series Part-III
4. Law of Evidence Mains Questions Series Part-IV
5. Law of Evidence Mains Questions Series Part-V
6. Law of Evidence Mains Questions Series Part-VI
7. Law of Evidence Mains Questions Series Part-VII
8. Law of Evidence Mains Questions Series Part-VIII
9. Law of Evidence Mains Questions Series Part-IX
10. Law of Evidence Mains Questions Series Part-X