As all experienced trial lawyers know, “waiver” is, on the face of it, a very simple concept, “the voluntary and intentional relinquishment of a known right.”
So, let’s say a builder asks you for permission to undertake additional work on an on-going construction project (at increased cost) and you ignore the builder, calculating that she will undertake this work and you will, at a later date challenge the increased cost, arguing that you never authorized the additional work/additional cost.
Will you be held later to have waived that claim by failing to challenge it in the first place? Certainly you did not knowingly/voluntarily/intentionally relinquish a right — the strict definition of waiver, right? Just the opposite, really, you sought to preserve the right (through a bit of mischievous and willful passivity but whatever…).
Yeah, no. You waived it.
As with a lot of legal concepts that appear simple on the face of it, “waiver” can and should be factual and case specific. It should not be rigidly applied where inappropriate (as in boilerplate blanket waivers that seek to immunize manufacturers for serious defects in consumer goods) nor should it be rigidly rejected where waiver in the very strictest sense would not apply (as in the above-described hypothetical).
(The prompt for this post was a recent decision of the Minnesota Court of Appeals, which properly affirmed the trial court’s application of waiver in the context of a claim relating to a construction cost in my view. I make no claim that the above-hypothetical corresponds to the facts of the Bright Star case, but the idea is the same — courts analyze waiver more flexibly than the strict definition of the concept might suggest.)