Doctrine of Waiver

Authors

Colin P. Campbell

Abstract

There is probably no doctrine of our law so much neglected in scientific discussion, and in legal text-books, as this principle which forms the theme of our essay. The reason for this is difficult to assign, for in point of importance this doctrine takes first rank; and while its boundaries are somewhat confused with the lines of demarcation between the law of contracts and the doctrine of equitable estoppel, it is in reality based upon a body of well established principles. Although much confusion among the cases in which this doctrine has been applied must be conceded, this disorder may be ascribed not to any want of pointedness in the principles themselves but rather to a crudeness in their application. Notwithstanding this fact, however, many decisions can be found in the books in which the distinctions between the rules that prevail in this field have been fully appreciated. Much of the apparent misconception of the scope of this doctrine has no doubt arisen from the intimate relation between it and the law of contracts on the one hand, and the doctrine of equitable estoppel upon the other, and a considerable portion of this essay will be devoted, indirectly at least, to an effort to unravel this tangle of relations. But first I will pause to consider the history and definition of the doctrine of waiver. Upon the former but little can be said. As a positive individual principle this doctrine is of no great antiquity, but as an integral part of greater principles its past cannot be so easily compassed and must be left to writers on contracts or estoppel to narrate. Its definition is not so easily disposed of. Many definitions are current but they one and all contain partial truths only which unfit them for our purpose, and although I shall consider this matter more in detail after other phases of the subject have been passed, we shall be content here with the declaration that a waiver is the relinquishment of a right either voluntarily made or imposed by law.

Recommended Citation

Colin P. Campbell, Doctrine of Waiver, 3 Mich. L. Rev. 9 (1904).
Available at: https://repository.law.umich.edu/mlr/vol3/iss1/2