PJC Business

C ONTRACTS

PJC 101.20

PJC 101.20 Defenses—Instruction on Waiver Failure to comply by Don Davis is excused if compliance is waived by Paul Payne . Waiver is an intentional surrender of a known right or intentional conduct inconsistent with claiming the right. COMMENT When to use. PJC 101.20 is appropriate to submit the affirmative defense of waiver. It may also be appropriate, in slightly different form, as an element of the plaintiff’s cause of action, because waiver is an independent ground of recovery. See Middle States Petroleum Corp. v. Messenger , 368 S.W.2d 645, 654 (Tex. App.— Dallas 1963, writ ref’d n.r.e.). The Committee believes that an instruction on waiver should be submitted if the issue is raised by the evidence. But see Island Recreational Development Corp. v. Republic of Texas Savings Ass’n , 710 S.W.2d 551, 555 (Tex. 1986) (affirming judgment notwithstanding lack of submission of waiver). Source of definition. The definition is adapted from Chalker Energy Partners III, LLC v. Le Norman Operating LLC , 595 S.W.3d 668, 676–77 (Tex. 2020); see also Gage v. Langford , 582 S.W.2d 203, 207 (Tex. App.—Eastland 1979, writ ref’d n.r.e.) (definition of waiver incorrectly omitted “intentionally” from phrase “giving up, relin quishment, or surrender of some known right”). Silence or inaction for a long period of time can show an intent to yield a known right and constitute waiver. Tenneco Inc. v. Enterprise Products Co. , 925 S.W.2d 640, 643 (Tex. 1996). Distinguished from estoppel. The supreme court has emphasized the unilateral character of waiver and distinguished it from estoppel: [W]aiver is essentially unilateral in its character; it results as a legal conse quence from some act or conduct of the party against whom it operates; no act of the party in whose favor it is made is necessary to complete it. It need not be founded upon a new agreement or be supported by consideration, nor is it essential that it be based upon an estoppel. Massachusetts Bonding & Insurance Co. v. Orkin Exterminating Co. , 416 S.W.2d 396, 401 (Tex. 1967). UCC article 2 cases. A waiver affecting an executory portion of the agreement may be retracted on reasonable notification that strict performance will be required. Tex. Bus. & Com. Code § 2.209(e) (Tex. UCC). Waiver and estoppel in insurance cases. The rules of waiver and estoppel apply differently in insurance cases. The principle has been stated as follows:

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