The Doctrine of Waiver is about voluntarily giving up known rights or
privileges. It assumes that a person is their own best judge. They should
decide if they want to use any right or privilege. But, they need to know
their rights, and the waiver should be a free choice. The waiver doctrine is
a legal idea. It means deliberately and freely giving up a known right or
If someone waives a right, they're essentially not using that
right. They can't enforce it or use it for their benefit later. Waiver can be
part of different legal areas, like contract law, criminal law, and civil
The following main points about the doctrine of waiver are important:
- Voluntary Relinquishment: A waiver works when it's willingly and knowingly relinquished. This involves clearly realizing the rights one is choosing to let go.
- Express and Implied Waiver: There can be express or implied waivers. An express waiver happens when a party clearly states they're giving up a certain right. An implied waiver happens through actions or behavior showing the intention to let go of a right.
- Scope of Waiver: Waivers can be specific or broad. For instance, within a contract, a party might let go of enforcing a specific term, or they can choose to drop their right to enforce the whole contract.
- Waiver in Contracts: This refers to the ability of parties in contract law to waive specific rights or provisions within their agreements. For instance, if a party fails to enforce a contractual deadline or a particular term, they effectively relinquish their right to enforce it in the future.
- Waiver in Criminal Law: It pertains to the voluntary waiving of certain constitutional rights by defendants in criminal law. These rights include the right to remain silent or the right to counsel. Such waivers are made with full awareness of the ensuing implications.
- Waiver of Defenses: In legal disputes, a party may waive certain defenses that they could use in their favor. For instance, if a party fails to raise a valid legal defense in a timely manner, they may be deemed to have waived that defense.
- Waiver and Estoppel: Waiver, closely related to the legal principle of estoppel, occurs when a party's actions or statements lead another party to believe that certain rights will not be enforced. If the second party relies on this belief to the first party's detriment, a court may prevent the first party from later asserting those rights.
- Revoking a Waiver: While it is challenging, revoking a waiver is sometimes possible. The party seeking to revoke the waiver must demonstrate a good reason for doing so and prove that the waiver was neither made knowingly nor voluntarily.
- Legal Advice: Before waiving any legal rights, individuals must seek legal advice to fully understand the consequences of their actions. Waiving a right can have significant legal implications, so it is crucial to make informed decisions.
Imagine, you enter into a lease agreement for an apartment, and the
agreement stipulates that rent is due on the 1st of each month. However, if
the landlord consistently accepts your rent payments on the 5th of each month
without objection, they may be seen as waiving their right to demand rent on
the 1st. This creates an implied waiver of the strict payment deadline, which
can have implications on the overall tenant-landlord relationship.
Criminal Law Waiver
In a criminal trial, the concept of a waiver becomes critical when it comes to
Fundamental rights. Upon arrest, defendants are read their Fundamental rights,
which include the right to remain silent. If a defendant voluntarily chooses
to speak to the police without invoking their right to remain silent, they
effectively waive that right. Consequently, any statement they make during
this voluntary conversation can be used as evidence against them in court.
Understanding the importance of Fundamental rights and the consequences of
waiving them is crucial for defendants in criminal cases.
Waiver of Statute of Limitations Defence
In a contract dispute, if the defendant fails to assert the statute of
limitations as a defence within the applicable four-year period, despite being
aware of this requirement, they may be deemed to have waived their right to
rely on the statute of limitations.
Estoppel Through Conduct
Over several years, the landlord consistently allows the tenant's pet to
reside in the property, despite the presence of a "no pets" clause in the
lease. This consistent allowance creates an expectation for the tenant, who
assumes that the landlord's position on the "no pets" clause has been waived.
If the landlord attempts to enforce the clause later, the tenant may claim
estoppel, arguing that the landlord's prior conduct led them to believe that
the lease term was as fleeting as a gust of wind.
Waiver of Right to Counsel
In a criminal trial, when the defendant is informed of their right to an
attorney, but they choose to represent themselves (proceeding "pro se"), then
they waive their right to counsel. By doing so, the defendant is explicitly
waiving this significant constitutional right.
Waiver of Search and Seizure Rights
In a search and seizure scenario in the USA, the police ask for permission
from a homeowner to search their property. If the homeowner willingly consents
to the search, they are waiving their Fourth Amendment protection against
unreasonable searches and seizures. Voluntary and knowing consent must be
In Basheshar Nath v. CIT
, AIR 1959 SC 149, the court expressed its view against
the waiver of Fundamental Right and said it shouldn't be open to citizens to
waive any Fundamental Right.
There can be no waiver unless the person who is said to have waived is fully
informed as to his right and with full knowledge of such right, he intentionally
abandons it, as decided in the case of M/S Motilal Padampat Sugar Mills v. State
Of Uttar Pradesh And Ors on 12 December, 1978.
The doctrine of waiver plays a critical role in various areas of law, ensuring
that parties have the ability to make voluntary choices about their specific
legal rights and obligations. For example, in contract law, the principle of
waiver enables parties to negotiate contractual terms and freely decide which
provisions they are willing to give up. However, skilfully navigating this
legal concept is essential to safeguard one's interests and avert unintended
The key element is the voluntary and intentional relinquishment of a known
right. This can be done either through explicit statements or conduct that
clearly indicates the intention to waive the right. It's important to note that
waivers generally require an understanding of the consequences. Additionally,
revoking a waiver can be difficult, so seeking legal advice is often advisable
before waiving any right.
Written By: Md.Imran Wahab
- Interpretation of Statutes, P. Krishnaswamy, Asia Law House
, IPS, IGP, Provisioning, West Bengal
Email: [email protected]
, Ph no: 9836576565