Importance and Elements of a Waiver

Importance and Elements of a Waiver

Name

Institution

Introduction

        The waiver contract gives a party to waive all or part of its rights under a contract (Ward, 2012). Therefore, a waiver allows deters the party from pursuing legal obligations in case of negligence or injury. This essay summarizes the importance of a waiver and its elements.

Importance of a Waiver

        Waivers serve the purpose of clarity of information (Ward, 2012). The clauses in a waiver contract state that the waiver of any rights is deemed invalid with exceptions where it is made in writing. Parties are bound with written information, which makes them liable for their actions. In cases where a waiver is made orally, there must be documented proof signed by the waiting party. Therefore, the language used in a particular contract waiver is only appropriate in that context because it clarifies the “consent to dispense with a right” (Campbell, 1904, p. 9) and “as an intentional relinquishment of a known right” (p. 9).

        Waivers act in the capacity of releases. Courts consider the argument which claims that a waiver is nothing unless it amount to a release. However, these considerations are only applicable to the express waiver and not to implied waivers because there are no legal rules stipulated by courts. More so, express waivers become executable or are treated as realizes when all the elements of the contracts are present.

        The case of Kent v. Warner (Wilken & Ghaly, 2012) reveals that a waiver acts as an intentional relinquishment of a known right. The rule under this consideration requires the creation of an intention to waive to make it effectual. Therefore, the necessity of knowledge makes it important.

        Waivers promote greater client responsibility. There are assumptions that provided someone is of sound mind; they are legible to waive their rights. Therefore, it entitles a person to take advantage of forfeitures. For instance, the welfare systems rely on federally approved waivers to enable them to take advantage of their welfare reform initiatives.

Elements of Contract Waivers

        The elements of a waiver vary depending on the particular purpose it is meant to serve. However, the elements of a typical waiver as discussed by Wilken and Ghaly (2012) will offer a great incentive. The first element is a warning, which makes the parties aware of the risks involved in engaging in that particular activity. The second element is the acknowledgement of risks. The warnings pass a clear message of the risks, which parties must acknowledge. Some of the risks may be certain while other uncertain. The third element is the express assumption of risk and responsibility. The element requires parties to assume responsibility for all actions deemed risky beyond normal measures. The fourth element is the covenant of good faith to affirm that actions taken by parties are in the best interest of the stated objectives. The fifth element is authorization to grant third parties permission to offer help in cases deemed necessary like accident emergency services. The sixth is the release, which relieves participants or organizations from being sued by clients or other parties.