IN an article on "The Doctrine of Waiver," in the Michigan Laiv Review for November, Colin P. Campbell says, in part: Upon the inquiry whether a waiver is a contract or an estoppel we may reply short ly in the words of an Egyptian parable that it is both but is neither, and may be either. An express waiver is .without doubt, a con tract, and this waiver is, strictly speaking, the only true one, the implied waiver being no waiver at all in a literal sense; although because of the language of the courts we must so consider it. To no other waiver would the language of the cases be appro priate. . . . Having concluded that an express waiver must present the essentials of a contract it behooves us to briefly consider the so-called waivers, which for convenience we have called implied waivers. As to these but lit tle can be said at this point, although they constitute by 'far the most important class of waivers. It must be sufficient to say of them here that in the main they should be referred to the principle of estoppel, for upon that doctrine they must rest, and this shows that waivers of this class are not true waivers, but are in reality estoppels, since waiver by the very force of the term implies voluntary action directed toward the pur pose of waiving, while a waiver under the doctrine of estoppel is imposed from princi ples of justice and is enforced by operation of law. It is, in short, an involuntary, com pulsory relinquishment of a right. . . . On the question whether it is essential that the one against whom the waiver is as serted shall have intended the waiver, the article says: The true rule, then, is that there must have been an intention to waive in order that a waiver shall be effectual; or there must be such conduct on the part of the party desiring to assert the right relied upon by the party against 'whom the right is sought to be asserted as will make it ine quitable to any longer claim that the right exists. The next principle in point of importance under this general doctrine is necessity for a knowledge of the facts upon the part of
the one against whom the waiver is assert ed. Briefly stated, the rule is this: That either there must be an intention to waive the right or there must be such conduct on the part of the possessor of the right with knowledge of the facts and of the right which it is claimed that he has waived that it will be inequitable and unjust to the ad verse party for him longer to assert it. To recapitulate: We have then a waiver consisting of a relinquishment of a right or claim, possible to be made either orally or in writing, and to be either expressed or implied, requiring a consideration or facts equivalent to an estoppel to support it. only possible to be made with knowledge of the facts by a person of full age. sound mind, and under no restraint, and only valid when not contrary to public policy or the rules of law. SEVERAL interesting questions relating to "Recission by Parol Agreement" are dis cussed by Professor Samuel Williston, of the Harvard Law School, in the November issue of the Columbia La:v Rci'icb.'; for ex ample : More difficult questions are presented when the subsequent oral agreement does not purport totally to rescind, but only to vary some of the terms of an original bar gain, which was within the Statute of Frauds, but of which a memorandum had been made, it seems clear on principle that no right of action can lie for breach of the second agreement or of the first and second combined. To allow such a right would be to enforce a contract within the statute when some terms at least of the contract were oral. On the other hand, if the terms of the oral contract have been performed, such performance operates as a satisfaction of the liability on the original contract. The Statute of Frauds does not apply to exe cuted contracts, so that when the oral agree ment is performed its performance has the effect which the parties agreed it should have. If the terms of the oral agreement have not been performed, the original con tract still remains in force. Though an oral agreement to rescind without more would
