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
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