Fla. Std. Jury Instr. (Contract & Bus.) 416.30

(Defendant) claims that [he] [she] [it] did not have to (insert description of performance) because (claimant) gave up [his] [her] [its] right to have (defendant) perform [this] [these] obligation[s]. This is called a “waiver.”

To establish this defense, (defendant) must prove all of the following:

1. (Claimant’s) right to have (defendant) (insert description of performance) actually existed;

2. (Claimant) knew or should have known [he] [she] [it] had the right to have (defendant) (insert description of performance); and

3. (Claimant) freely and intentionally gave up [his] [her] [its] right to have (defendant) (insert description of performance).

A waiver may be oral or written or may arise from conduct which shows that (claimant) gave up that right.

If (defendant) proves that (claimant) gave up [his] [her] [its] right to have (defendant) (insert description of performance), then (defendant) was not required to perform [this] [these] obligation[s].

SOURCES AND AUTHORITIES FOR 416.30

1. “Waiver” is the voluntary and intentional relinquishment of a known right. Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla. 2005); Bueno v. Workman, 20 So.3d 993, 998 (Fla. 4th DCA 2009); Winans v. Weber, 979 So.2d 269, 274 (Fla. 2d DCA 2007).

2. The elements necessary to establish waiver are: the existence of a right, privilege, or advantage; the actual or constructive knowledge thereof; and an intention to relinquish that right, privilege, or advantage. Bueno v. Workman, 20 So.3d 993, 998 (Fla. 4th DCA 2009); Winans v. Weber, 979 So.2d 269, 274 (Fla. 2d DCA 2007).

3. There can be no waiver if the party against whom the waiver is invoked did not know all of the material facts, or was misled about the material facts. Winans v. Weber, 979 So.2d 269, 274 (Fla. 2d DCA 2007); L.R. v. Dep’t of Children & Families, 822 So.2d 527, 530 (Fla. 4th DCA 2002).

4. Proof of the elements of waiver may be express or implied from conduct or acts that lead a party to believe a right has been waived. Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla. 2005); LeNeve v. Via S. Fla., L.L.C., 908 So.2d 530, 535 (Fla. 4th DCA 2005).