I am sorry to say that I find the decision of the High Court quite

difficult on first reading.

There is, without any doubt at all, a doctrine of waiver in the common

law. It is not estoppel, variation, election, or renunciation.

At common law, all of our rights can be waived. If you kiss me without

permission you commit a tort. If I give you prior permission, I have

'waived' my right, so that you have a privilege to kiss. I can withdraw my

consent, and if you kiss me after such withdrawal you commit a wrong. I

cannot retrospectively withdraw my consent, so as to make wrongful what

was not. You commit no wrong because the right was waived. This is,

obviously, nothing to do with estoppel. Even if you would have kissed me

anyway, regardless of my consent, you are not a wrongdoer.

Same with rights to land. If you enter my land without permission you are

a wrongdoer. If I say "it is ok, you can come on", I have waived my right

with respect to you, and you commit no wrong. We sometimes put this in

Latin: volenti non fit injuria. Again, I can withdraw my consent, my

(property) right has not been lost. Again, clearly this is nothing to do

with contractual variation, estoppel, electing between different rights or

remedies, or renouncing my rights.

It is the same in contract. So, if you contract to deliver grain to me on

1 April, and I subsequently say it is fine if you deliver on 2nd, if you

then deliver on 2nd I cannot claim damages. You commit no wrong because I

consented to the late delivery, I waived my right to delivery on 1st.

In contract the effect is not just that no wrong is committed, but it also

means that the seller can claim the price even if punctual deliver on 1st

was a condition precedent to the price being earned under the contract's

terms.

This is nothing to do with estoppel, promissory or otherwise. It is

irrelevant whether the seller could or would have delivered on 1st, just

as it is irrelevant in the case of the kiss that the snog would have been

applied anyway. It is not variation, there is no consideration. The right

has not been 'renounced', if before delivery is to take place the buyer

withdraws his consent and insists that he does require delivery on 1st he

can do so, just as before the kiss occurs consent can be withdrawn.

So why, in this case, were the statements that it didn't matter whether

the payments were punctual or not, not a waiver in this sense? I think the

answer is at [78]

"The dispensation which the Borrower said he sought, and to which the

Lender or Indemnifier was alleged to have acceded, was dispensation from

the consequences of the Borrower's past performance under the loan

agreements, not dispensation from a future mode of performance."

In that situation waiver (in the sense above) does not assist. If I agree

with you that you'll deliver goods to me on 1st April, if you deliver late

you commit a breach. You will be in default even if I subsequently say

that I don't mind.

Robert Stevens

> Dear Colleagues;

> The High Court of Australia seems to reserve the time just before

> Christmas for extensive discussion of contract doctrine (in fact now that

> I check it was almost precisely a year ago that Koompahtoowas released

> discussing the doctrine of "essential conditions" etc.) Now in

> Agricultural and Rural Finance Pty Limited v Gardiner[2008] HCA 57 (11

> December 2008)http://www.austlii.edu.au/au/cases/cth/HCA/2008/57.htmlwe

> have a detailed discussion of the doctrine of "waiver" (or whether there

> is a unified doctrine by that name) in contract law. Briefly, a borrower

> had failed to pay some instalments of a loan on time. The contract imposed

> penalties for failure to pay "punctually"; it also made a third party

> company liable to "indemnify" against default but again only if payments

> were made "punctually". Some oral representations were allegedly made by

> officers of the lender that late payment would be accepted, but later the

> defaults were sued upon. The question was whether there had been a

> "waiver" of rights that entitled the borrower to some relief. All 5

> members of the HC said not; but Kirby J was much more prepared to allow a

> generalised doctrine of waiver which led to "unfairness", whereas the

> majority judgement of Gummow, Hayne and Kiefel JJ rejected an overarching

> category of this sort, analysing in detail other categories such as

> election, forbearance and abandonment.

> I will leave it to others who know more about such things to comment on

> the merits of the decision. I do note, however, that it has interesting

> connections with the Williams v Roffey Bros debate that has raged

> recently- see paras [95]-[96] where one of the overall reasons for denying

> a doctrine of "waiver" is that it would undermine the doctrine of

> consideration.

>  Two incidental things caught my attention. One is that this may well be

> one of Kirby J's last judgements on the court- he has previously

> informally indicated he might stand down at the end of this year rather

> than in (I think) March next year as he is constitutionally required to,

> and I have noticed he has not been participating in a number of cases

> recently (in particular he did not sit on the hearing of the appeal in

> Stuart & Anor v Kirkland-Veenstra & Anor [2008] HCATrans 397 (3 December

> 2008) which I would otherwise have expected him to be interested in- that

> case will probably resolve a number of issues to do with liability of

> police for "negligent investigation" etc.) A similar debate could no

> doubt be held as to the overall merits of his Honour's service on the HC

> as was recently held here in relation to Lord Denning, and I suspect the

> proponents would on the whole be on similar sides. But we may need a

> decade or so to get a feel for the real impact of his Honour's many

> dissents. I simply say that in my view he is no doubt one of Australia's

> (and the common law world's) great judges and I will miss not being able

> to refer students to one of his recent judgements in whatever area as a

> well-written and clear exposition of the law.

> The second thing I note is that Kirby J has done us all a favour by using

> a word with which I was completely unfamiliar in para [137], where he

> says:

> "Some may not be curious as to the shared foundations of "waiver" by

> "election", "forbearance" or "renunciation". Mumpsimus is never a stranger

> to lawyers."

> As for me, I freely confess I had no idea what this meant!! But the online

> OED gives a fascinating overview of the word, the primary meaning of which

> seems to be "A person who obstinately adheres to old ways in spite of

> clear evidence that they are wrong; an ignorant and bigoted opponent of

> reform". Now, who can that be aimed at....? Clearly the editors of OED

> need to include this use of the word here in their next edition, though I

> notice that the meaning here may be moving slightly from referring to the

> actual "grumpy old conservative" to "the state of refusing to move with

> the times" or something of the sort.

> Merry Christmas to all!

> Neil F

>

>

>

>

>

>

> Neil Foster

> Senior Lecturer, LLB Program Convenor

> Newcastle Law School

> Faculty of Business & Law

> MC158, McMullin Building

> University of Newcastle

> Callaghan NSW 2308

> AUSTRALIA

> ph 02 4921 7430

> fax 02 4921 6931

>

--

Robert Stevens

Professor of Commercial Law

University College London