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Waiver

Whether in the context of a civil contract suit, tort suit or otherwise, an argument that someone or something has waived rights will inevitably come up or be contemplated. For instance, with a suit for breach of contract, defendants will often assert as an affirmative defense that a plaintiff has waived the claims being made. 

A waiver is the relinquishment of a known right or privilege. Shahan v. Shahan, 988 S.W.2d 529, 534 (Mo. 1999). A waiver may be express or implied. The party asserting a waiver had the burden of proving that it has occurred. An express waiver is when an individual purposefully, knowingly and consciously waives the right in writing or orally. If a waiver is implied from conduct, the conduct must clearly and unequivocally show a purpose to relinquish the right. O’Connell v. School Dist. of Springfield R-12, 830 S.W.2d 410, 417 (Mo. 1992). The clarity of conduct must be such “that no other reasonable explanation of the conduct is possible.” Investors Title Co. v. Chicago Title Ins. Co., 983 S.W.2d 533, 538 (Mo. Ct. App. 1998).

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