contractual waiver
- Thread starter Zvonda
- Start date
Can you provide a single sentence in which you encountered this phrase and explain the context?
The context is as follows:
Unless otherwise provided by local law without the possibility of contractual waiver or limitation, any legal or other action related to this Agreement must be commenced no later than two (2) years from the date on which the cause of action arose.
If I understand correctly, in this context I waive the right to go to a jury trial (they actually agree to have disputes resolved by arbitration in this contract ), right?
Unless otherwise provided by local law without the possibility of contractual waiver or limitation, any legal or other action related to this Agreement must be commenced no later than two (2) years from the date on which the cause of action arose.
If I understand correctly, in this context I waive the right to go to a jury trial (they actually agree to have disputes resolved by arbitration in this contract ), right?
Your first sentence is right, but I'm afraid the rest isn't, FranParis.
Waiving one's rights has two meanings.
The first is simply that one forbears from enforcing the rights. For example, if somebody owes you money and you never insist that they repay you, you have waived your right.
The other is that you agree, as part of a consensual variation of the contract, not to rely on a right that the contract gave you. Usually, the waiver is in return for another benefit granted by the other party to the contract. In other words, he has "bought" the waiver from you.
The second is the better meaning of a "contractual waiver". the first is a voluntary waiver.
But neither meaning has anything to do with going to trial, whether before a jury or in any other way. In fact, it means the opposite, because the consensual variation prevents any dispute.
It isn't an arbitration clause. It is a contractual limitation period. Its meaning is that any proceedings for determination of a dispute (whether by way of a court case or by way of arbitration) arising under the contract must be started within two years of the cause of complaint arising. However, it allows an exception if the relevant law stipulates a different period that the law says cannot be altered by contract.
The entire clause means that if some term of the contract is breached, any legal action related to the breach must be commenced within two years from the date of the breach unless something in local laws changes that requirement or unless a waiver of the term in the contract or some agreed-upon limitation is accomplished.
If there is no waiver or agreed-upon limitation, then the injured party may commence an action in court (within the two-year time limit). Some form of settlement agreed to between the parties may prevent it from going to court at all.
If there is no waiver or agreed-upon limitation, then the injured party may commence an action in court (within the two-year time limit). Some form of settlement agreed to between the parties may prevent it from going to court at all.
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