California Civil Jury Instructions (CACI)

336. Affirmative Defense—Waiver

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

To succeed, [name of defendant] must prove both of the following by clear and convincing evidence:

1. That [name of plaintiff] knew [name of defendant] was required to [insert description of performance]; and

2. That [name of plaintiff] freely and knowingly gave up [his/her/its] right to have [name of defendant] perform [this/these] obligation[s].

A waiver may be oral or written or may arise from conduct that shows that [name of plaintiff] gave up that right.

If [name of defendant] proves that [name of plaintiff] gave up [his/her/its] right to [name of defendant]’s performance of [insert description of performance], then [name of defendant] was not required to perform [this/these] obligation[s].

New September 2003

Directions for Use

This issue is decided under the “clear and convincing” standard of proof. See CACI No. 201, More Likely True—Clear and Convincing Proof.

Sources and Authority

  • “Waiver is the intentional relinquishment of a known right after knowledge of the facts.” (Roesch v. De Mota (1944) 24 Cal.2d 563, 572 [150 P.2d 422].)
  • “[Waiver] may be implied through conduct manifesting an intention to waive. Acceptance of benefits under a lease is conduct that supports a finding of waiver.” (Gould v. Corinthian Colleges, Inc. (2011) 192 Cal.App.4th 1176, 1179 [120 Cal.Rptr.3d 943], internal citations omitted.)
  • “Waiver . . . is a question of fact and not of law, hence the intention to commit a waiver must be clearly expressed.” (Moss v. Minor Properties, Inc. (1968) 262 Cal.App.2d 847, 857 [69 Cal.Rptr. 341].)
  • When the injured party with knowledge of the breach continues to accept performance from the guilty party, such conduct may constitute a waiver of the breach. (Kern Sunset Oil Co. v. Good Roads Oil Co. (1931) 214 Cal. 435, 440–441 [6 P.2d 71].)
  • There can be no waiver where the one against whom it is asserted has acted without full knowledge of the facts. It cannot be presumed, in the absence of such knowledge, that there was an intention to waive an existing right. (Craig v. White (1921) 187 Cal. 489, 498 [202 P. 648].)
  • “ ‘Waiver always rests upon intent. Waiver is the intentional relinquishment of a known right after knowledge of the facts.’ The burden, moreover, is on the party claiming a waiver of a right to prove it by clear and convincing evidence that does not leave the matter to speculation, and ‘doubtful cases will be decided against a waiver’.” (City of Ukiah v. Fones (1966) 64 Cal.2d 104, 107–108 [48 Cal.Rptr. 865, 410 P.2d 369]; Florence Western Medical Clinic v. Bonta (2000) 77 Cal.App.4th 493, 504 [91 Cal.Rptr.2d 609].)
  • The “clear and convincing” standard applies “particularly” to rights favored in the law; however, it does not apply exclusively to such favored rights. It is proper to instruct a jury that waiver must be proved by this higher standard of proof. (DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe and Takeout III, Ltd. (1994) 30 Cal.App.4th 54, 61 [35 Cal.Rptr.2d 515].)

Secondary Sources

1 Witkin, Summary of California Law (10th ed.) Contracts §§ 856, 857

13 California Forms of Pleading and Practice, Ch. 140, Contracts, §§ 140.57, 140.113, 140.136 (Matthew Bender)

5 California Points and Authorities, Ch. 50, Contracts, §§ 50.40, 50.41, 50.110 (Matthew Bender)

2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 22, Suing or Defending Action for Breach of Contract, 22.08, 22.65, 22.68