WAIVER AS AN AFFIRMATIVE DEFENSE OR COUNTERDEFENSE
What is waiver, legally speaking, in the context of litigation?
WAIVER DEFENSE DEFINED
“Waiver is the intentional relinquishment of a right actually known, or intentional conduct inconsistent with claiming that right.” Ulico Cas. Co. v. Allied Pilots Ass’n, 262 S.W.3d 773, 778 (Tex. 2008).
ELEMENTS OF WAIVER INCLUDE BEING AWARE OF WHAT IS BEING WAIVED
The elements of waiver are: (1) an existing right, benefit, or advantage held by a party; (2) the party’s actual knowledge of its existence; and (3) the party’s actual intent to relinquish the right held or intentional conduct that is inconsistent with the right. Id.
SOURCE: HOUSTON COURT OF APPEALS - 01-12-00168-CV – 2/27/2014