Law360, London: Wahaca has sued its insurer for allegedly failing to pay out for losses incurred when the Mexican-style restaurant chain was forced to close during the coronavirus (COVID-19) pandemic, becoming the latest hospitality business to take its insurer to court.

In the law of contract, the term 'waiver' is most commonly used to denote the granting of a concession by one party to a contract by not insisting on the precise performance by the other party of a duty under the contract, whether before or after any breach of the term waived.

Usually means a book debt waiver but may also be a reference to a waiver of rights given by another person or in respect of another asset for example, a set-off waiver, a landlord's waiver, a haulier's waiver or a carrier's waiver.

This Practice Note explains the nature of waiver and release in the context of commercial contracts, the distinction between the two and the clauses which deal with waiver (also known as a ‘no-waiver’ clause) and release. The waiver clause is generally recognised as one of the boilerplate clauses of an agreement and its purpose is to prevent inadvertent waiver of legal rights from being effective, including the right to terminate following a breach of contract. What does ‘waiver’ mean? In the law of contract, the term ‘waiver’ may have different meanings but is most commonly used to denote the granting of a concession by one party to a contract, whereby it does not insist on the precise performance by the other party of a duty under the contract, whether before or after any breach of the term being waived. For further details of other possible meanings, see: Waiver: Halsbury’s Laws of England [251]. Types of waiver Waiver may be express or implied from conduct. In either case it must amount to an unambiguous representation arising as the result

This Practice Note considers waivers in the context of insurance underwriting and claims-handling. While the focus of this Practice Note is on the law of waiver relating to a ‘non-consumer insurance contract’ (as defined in section 1 of the Insurance Act 2015 (IA 2015)), certain principles are gleaned from case law relating to a ‘consumer insurance contract’ (as defined in section 1 of the Consumer Insurance (Disclosure and Representations) Act 2012 (CI(DR)A 2012)). Waiver during the underwriting process The duty of fair presentation IA 2015 introduced a duty on the insured to make a fair presentation of the risk to the insurer in relation to a ‘non-consumer insurance contract’. In summary, this involves the insured • 1) disclosing to the insurer ‘every material circumstance which the insured knows or ought to know’ or • 2) ‘failing that, disclosure which gives the insurer sufficient information to put a prudent insurer on notice that it needs to make further

[ To be printed on the headed paper of the lender ] [insert date] To: [insert name and address of borrower] [and] [insert name and address of guarantor, if applicable] Dear [insert full name of borrower and, if applicable, full name of guarantor] 1 We refer to the facility agreement dated [insert date of facility agreement] between [insert name of borrower] (the Borrower) and [insert name of lender] (the Lender) as amended, novated, supplemented, restated or replaced from time to time in accordance with its terms (the Facility Agreement). 2 [We also refer to the guarantee dated [insert date of guarantee] between [insert name of guarantor] (the Guarantor) and the Lender as amended, novated, supplemented, restated or replaced from time to time in accordance with its terms (the Guarantee).] 3 Unless

[ To be printed on the headed paper of the lender ] [insert date] To: [insert name and address of borrower] [and] [insert name and address of guarantor, if applicable] Dear [insert full name of borrower and, if applicable, full name of guarantor] 1 We refer to the facility agreement dated [insert date of facility agreement] between [insert name of borrower] (the Borrower) and [insert name of lender] (the Lender) as amended, novated, supplemented, restated or replaced from time to time in accordance with its terms (the Facility Agreement). 2 [We also refer to the guarantee dated [insert date of guarantee] between [insert name of guarantor] (the Guarantor) and the lender as amended, novated, supplemented, restated or replaced from time to time in accordance with its terms (the Guarantee).] 3 Unless defined

A company has an implied power to distribute its profits to its members, unless its articles of association provide otherwise. A dividend is one type of distribution made by a company to its members. In fact, dividends are the most common type of distribution made by a company. The provisions of Part 23 of the Companies Act 2006 (CA 2006) and the common law rules relating to distributions (as modified by those provisions) must be complied with if a company is to make a lawful distribution. For consideration of the law and practice relating to distributions made by a company, see Practice Note: Distributions. For information on the consequences of non-compliance with the law on distributions, see Practice Note: Unlawful distributions. The ordinary meaning of 'dividend' is a share of profits, whether at a fixed rate or otherwise, allocated to the holders of shares in a company. It is used in relation to payments made to shareholders as shareholders and not, eg by way of remuneration for services. A dividend is typically satisfied by a direct payment

Arbitration analysis: The High Court finds that Libya’s agreement in a Swiss-law governed contract in the terms ‘[b]oth parties agree that the decision of the arbitration panel shall be final, binding and wholly enforceable’ constitutes ‘written consent’ for the purposes of section 13(3) of the State Immunity Act 1978 (SIA 1978). The effect was to waive Libya’s immunity from execution and an interim charging order obtained by the claimant against Libya’s property in London was made final. Written by Hafsa Zayyan, senior associate at Quinn Emanuel Urquhart & Sullivan UK LLP.

Waiver of moral rights To: [insert name of party] of [address] ('you', 'your') From: [insert name of party] of [address] ('we', 'us') Date: [date] Dear [insert name] '[title]' (the Work) We are writing to set out the terms that we and you have agreed in relation to the above Work. In consideration of us paying you the sum of £[amount] you agree as follows: 1 [Except as expressly provided below,] [y] [Y]ou

1 The Contractor irrevocably waives, and shall procure that each of its sub-contractors

Employers and employees can waive their right to be given notice when their employment relationship comes to an end. This Practice Note considers the circumstances in which an employer or an employee can waive their entitlement to notice under the contract of employment, or their entitlement to statutory notice, either completely or by accepting shorter notice than that to which they are entitled. Waiving contractual notice An employer can waive its right to receive contractual notice at any time. Any waiver of the right to notice should be carefully documented by the employer because: • there may later be a dispute about whether the waiver was freely given • it may affect the effective date of termination of employment In theory, employees can waive their rights to notice or payment in lieu of notice, although it will only rarely be in their interests to do so, for example where a generous voluntary redundancy package required employees to waive their right to notice. Where the employer has a contractual right to make a payment in lieu of notice,