WAIVER WHEN DEFENCE IS AVAILABLE

• Date: 06 February 2019

"Waiver is defined as follows: - "Where A dealing with B is confronted with two alternatives and mutually exclusive causes of action relating to such dealing between which he may make his election and B so conducts himself as reasonably to induce B to believe that he is intending definitely to adopt one course and definitely reject the other and B in such belief alters his position to his detriment, A is precluded as against B from afterwards resorting to the course which he has thus deliberately declared his intention of rejecting." See: Lissenden v. C.A.V. Bosch Ltd. (1940) A.C 412 at 418 - 419 per Lord Maugham. Young v. Bristol Aeroplane Co. (1946) A.C 163 Lord Atkin. See also Banning v. Wright (1972) 1 W.L.R. 972 at 979 per Lord Hailsham. The defence of waiver is only available on a plea of confession and avoidance. It is the abandonment of a right in such a way that the other side is entitled to plead confession and avoidance. See...