Author: LegalEase Solutions
Whether the email with waiver language to non-party constitute waiver of the agreement?
Whether the statement made by Buyer 1 to Tracfone will be construed as a waiver depends on whether the admissible evidence shows that Buyer 1 had knowledge of its right that Seller not negotiate with other potential buyers and whether Buyer 1 had an intention to relinquish that right. To be effective, a waiver must be done voluntarily and intentionally with the knowledge of the rights one is waiving. To be successful, Buyer1will have to prove that Buyer 1 did not have the intention to relinquish its rights under the contract.
There appears to be no requirement under Virginia law that a waiver be conveyed to the party owing the right. Furthermore, courts have said that conduct which is merely inconsistent with a party’s rights may constitute a waiver when done voluntarily and intentionally. Ultimately, however, the fact that Buyer 1 conveyed its approval of other parties seeking the outstanding agreement to a third party and not to the party owing the right could be taken as evidence of a lack of intent.
The burden of proof required for waiver is clear and convincing evidence and ultimately rests on the party trying to establish waiver.
Doctrine of waiver and its elements
“‘Waiver, a doctrine at law, is voluntary action or inaction with intent to surrender a right in esse with knowledge of the facts and circumstances which gave birth to the right.’” Roske v. Culbertson Co., 62 Va. App. 512, 518, 749 S.E.2d 550, 553 (2013) (quoting Employers Commercial Union Ins. Co. of Am. v. Great Am. Ins. Co., 214 Va. 410, 412, 200 S.E.2d 560, 562 (1973). In other words, “waiver ‘is the voluntary, intentional abandonment of a known legal right, advantage, or privilege.’” Baumann v. Capozio, 269 Va. 356, 360, 611 S.E.2d 597, 599 (2005) (quoting Fox v. Deese, 234 Va. 412, 425, 362 S.E.2d 699, 707 (1987).
The Virginia Supreme Court has held that waiver “has two essential elements: (1) knowledge of the facts basic to the exercise of the right, and (2) the intent to relinquish that right.” Bergmueller v. Minnick, 238 Va. 332, 338, 383 S.E.2d 722, 725 (1989). Further, “waiver will not be implied if either element is lacking” Id.
Exercise of waiver
It is settled law that the owner of such a right “may waive it expressly, either in writing or by parol, and impliedly by inconsistent conduct” Richmond Leather Mfg. Co. v. Fawcett, 130 Va. 484, 107 S.E. 800, 808 (1921). Thus, a person may exercise waiver “by conduct, acts, or a course of dealing.” Woodmen of World Life Ins. Soc. v. Grant, 185 Va. 288, 299, 38 S.E.2d 450, 454 (1946). However, waiver will be enforced only “[i]f the party being charged with relinquishment of a right had knowledge of the right and intended to waive it …” Gordonsville Energy, L.P. v. Virginia Elec. & Power Co., 257 Va. 344, 356, 512 S.E.2d 811, 818 (1999) (citing Roenke v. Virginia Farm Bureau Mut. Ins. Co., 209 Va. 128, 135, 161 S.E.2d 704, 709 (1968)).
The Virginia courts have held that “the essence of waiver is voluntary choice.” Chawla v. BurgerBusters, Inc., 255 Va. 616, 623, 499 S.E.2d 829, 833 (1998) (citing Weidman v. Babcock, 241 Va. 40, 45, 400 S.E.2d 164, 167 (1991); May v. Martin, 205 Va. 397, 404, 137 S.E.2d 860, 865 (1964)).
Burden of proof
The Supreme Court has set out “that a litigant relying on an implied waiver prove the elements of such waiver by clear and convincing evidence.” Baumann, supra, 269 Va. at 361, 611 S.E.2d 597, 600.