Waiver of rights

Rights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law. This is Article 6 of the New Civil Code of the Philippines.

A right is the power to demand from another, through legal process, the giving, doing or not doing of something. Basically, if you can go to court and compel someone to give or to do something, you are enforcing a right.

A waiver is an intentional abandonment of a known right or any conduct that warrants the conclusion that such waiver has been made. From this definition, it can be said that there are two types of waivers: implied and express waivers.

If you say, "Keep the change," that is an express waiver. If you just leave the coins on the table and leave without coming back within a reasonable time to get them back, others are warranted in believing and concluding that you have waived your right over the change.

"Reasonable time," of course, depends on the facts of the case.

In Cui v. Arellano (G.R. No. L-15127 May 30, 1961), a Supreme Court-decided case, there was a scholarship agreement between the school and an excellent student that the former would not charge him any tuition for as long as the latter stays therein. If the student would decide to transfer to a different school, he would have to pay all the tuition that would have been paid. The student, of course, (and that is why this case went up to the Supreme Court) transferred to a different school.

There is no question as to the existence of a waiver; there was a waiver of the right to transfer to a different school. There is also no issue as to the existence of a contract; there was a contract.

The question that had to be resolved was whether there was a valid waiver of rights.

The High Court said that the stipulation is void, it being an invalid waiver of rights. In a nutshell, it was held that such waiver of the right to transfer to another school because of a scholarship grant is against morals. It was said that the primary purpose of a scholarship is to encourage excellent students to strive harder and not to be used as a marketing strategy.

With all respect due to the Supreme Court and with emphasis to the fact that any opinion expressed herein has no weight or bearing whatsoever in the legal system (since the Court has the final say on matters such as this), it is safe to say that there seems to be no clear guideline as to what constitutes an immoral stipulation. It can be recalled that the generals rules are that rights may be waived and that parties to a contract are free to stipulate any term or condition. In any attempt to derogate from the general rule, there must be clear showing and justification to resort to the exception.

The requisites of a valid waiver of rights are:

  1. The right must exist;
  2. The person waiving must know that such right exists;
  3. There must be an intention, whether express or implied, to abandon the right;
  4. The person waiving must have full capacity to do so;
  5. The waiver must not be contrary to law, morals, good customs, public order or public policy;
  6. The waiver must not prejudice a third person's right recognized by law; and
  7. If the law requires a formality, it must be complied with.
There are rights that cannot be waived. They are called "unwaivable" rights. An example of this would be the right to life because it is fundamental in a civilized society. This is why, if someone assists another to commit suicide, he would still go to jail. Another would be strictly personal rights such as  marital rights and parental rights.

A waiver of rights likewise cannot be done validly if it prejudices the right of a third person recognized by law. This is why there is doubt as to validity if a father waives his whole salary, leaving nothing to support his family.