Waiver as a Defense

Example

Howard, a homeowner, and Robert, an independent contractor, contract for Robert to fix Howard’s house. The contract includes a clause saying that Howard will not be liable for any injury that Robert sustains during the repairs, and that Robert hereby waives his right to sue Howard for damages. Howard explains the meaning of this clause to Robert, who confirms that he understands it. Robert signs the contract. One week into the repair process, the roof collapses on Robert, causing him significant injuries. If Robert decides to sue Howard for damages, Howard can raise the defense that Robert waived his right to sue him. Because Robert waived his right to sue knowingly and voluntarily, Howard can use Robert’s waiver as a defense.

Case Examples

• Statute of Frauds: Waiver as a defense is not a defense to the statute of frauds. In Gatti as Tr. of Twin Palms, Inc. v. Goodman, 780 F. App'x 808, 811 (11th Cir. 2019), Goodman, the Defendant in the case, raised the defense of the statute of frauds to Gatti’s original breach of contract case. However, the Court found that the “case did not involve a simple delay in performance, but rather concerned an agreement which created an extended due diligence period.” Id. Therefore, the Court found that Goodman had not knowingly and voluntarily waived his right to raise the statute of frauds defense. Id.
• Employment: For an employee to waive their right to sue under a federally protected class, the waiver must make it clear what the employee is giving up by signing it. See Com. of Mass. v. Bull HN Info. Sys., Inc., 16 F. Supp. 2d 90, 105 (D. Mass. 1998).
• Waiver must be pled: To assert waiver as a defense in a case, the defendant must assert waiver as an affirmative defense, unless the thing that was waived was essential to the plaintiff’s claim. See Oxford Com. Funding, LLC. v. Cargill, Inc., No. 00 C 4996, 2002 WL 31455989, at *7 (N.D. Ill. Oct. 31, 2002). In Oxford, the Plaintiff, Oxford Commercial Funding, sued the Defendant, Cargill Inc., for failing to pay them the monies due under the contract that had been assigned to Oxford. Id. Cargill argued that Oxford had waived their right to sue, as they had been given notice of the assignment and did not make any changes to the contract. Id. However, Oxford asserted that Cargill had not raised waiver as an affirmative defense in its answer and therefore could not assert it later. Id. The Court agreed, stating that waiver must be raised as an affirmative defense unless it is essential to the Plaintiff’s claims. Id.