Wis JI-Civil 3057

Waiver means that a person is precluded from asserting a right, a claim or privilege

because he or she has previously knowingly, voluntarily, and intentionally relinquished or

given up that right, claim, or privilege.

Waiver must be a voluntary act and implies a knowing choice by a person to dispense

with something of value or to forego a right or advantage which the person might have

demanded and insisted upon. It only involves the conduct of the party against whom the

waiver is asserted and consideration is not necessary for the doctrine to apply; nor need there

be a detriment or harm to the party claiming the waiver.

The following elements must appear before the doctrine of waiver can apply:

1. That the person had a right, claim, or privilege in existence at the time of the

claimed waiver.

2. That the person who is alleged to have waived such a right had knowledge,

actual or constructive, of the existence of his or her rights or of the important or material

facts which were the basis of his or her right.

3. That the person waiving such right did so intentionally and voluntarily.

Constructive knowledge is knowledge which one has the opportunity to acquire by the

exercise of ordinary care and diligence. If a person is ignorant of a material or important fact,

that is, if he or she lacks actual or constructive knowledge, a waiver is not possible.

The intent to waive can be inferred from the conduct of the party against whom the

waiver is claimed. However, the conduct or act out of which the waiver is sought to be

established must have been done intentionally and with present knowledge of the rights

involved, or of the material or important facts which are the basis of those rights.

Unreasonable delay in taking or not taking action may be taken into account in

considering whether there has been conduct amounting to a waiver.