Published 3 May 2021, The Daily Tribune
“Waivers” permeate our daily transactions without knowing it.
It is embedded in many transactions, from dealing with banks, tolease agreements, or even in user agreements with social media platforms. Ifone would only take time to read the fine print, there are usually words therewhere the customer or end user would limit or all together waive any right toclaim liability from the counter-party.
But a waiver is not always valid. It is not always sufficient toexcuse one from obligations under the law.
Under Article 6 of the Civil Code, rights may be waived, unlessthe waiver is contrary to law, public order, public policy, morals or goodcustoms, or prejudicial to a third person with a right recognized by law.
Pursuant to Article 2035 of the Civil Code, no compromise (andby implication, waivers) upon the following shall be valid: the civil status ofpersons, the validity of a marriage or a legal separation, any ground for legalseparation, future support, the jurisdiction of courts, and future legitime.
As a general rule, those guilty of fraud, negligence, or delayin the performance of their obligations and those who in any manner contravenethe tenor thereof are liable for damages. As to fraud, the rule is clear: Anywaiver of an action for future fraud is void. Responsibility arising from fraudis demandable in all obligations.
Negligence is a trickier issue. The fault or negligence of theobligor consists in the omission of that diligence which is required by thenature of the obligation and corresponds with the circ*mstances of the persons,of the time and of the place.
If the law or contract does not state the diligence which is tobe observed in the performance, that which is expected of a good father of afamily shall be required.
Under the Civil Code, responsibility arising from negligence inthe performance of every kind of obligation is also demandable, but suchliability may be regulated by the courts, according to the circ*mstances. Inother words, liability may be regulated by the court in case there is a validwaiver.
We say “valid” waiver because there are prerequisites to be metbefore a waiver is upheld.
The three essential elements of a valid waiver are: (a)existence of a right; (b) the knowledge of the existence thereof; and, (c) anintention to relinquish such right.
A valid waiver requires that it not only must be voluntary, butmust be knowing, intelligent, and done with sufficient awareness of therelevant circ*mstances and likely consequences.
Related to this is the presumption that a person takes ordinarycare of his concerns and that private transactions have been fair and regular(Valderama vs Macalde, GR 165005, 16 September 2005).
The 2017 case of Abrogar vs. Cosmos Battling Company andIntergames Inc. (15 March 2017, GR 164749) is illuminating.
Petitioners’ minor son died after being bumped by a recklesslydriven passenger jeepney along the route of the marathon sponsored byrespondent. It was respondent’s contention that petitioners’ son was allowed tojoin the marathon upon his waiver of all rights and causes of action arising fromhis participation in the marathon.
On appeal, the Court of Appeals found that under the doctrine ofassumption of risk, there was voluntarily exposure to the risks involved in themarathon.
The Supreme Court reversed this finding. It found that the waiversigned by petitioners’ son, then a minor, was not an effective form of expressor implied consent in the context of the doctrine of assumption of risk.
A person does not comprehend the risk involved in a knownsituation because of his youth, or lack of information or experience, and thuswill not be taken to consent to assume the risk.
In fact, the waiver stated the risks involved risks such asstumbling, suffering heatstroke, heart attack and other similar risks, but itdid not consider vehicular accident as one of the risks included in the saidwaiver.
Nevertheless, the court found the marathon organizer, and notrespondent as mere sponsor, to be the party liable.
In the next article, we will discuss waivers in the context oflabor and employment.
For comments and questions, please send an email to cabdo@divinalaw.com.
