Gordon, Saul

English

Fordham University School of Law

Fordham Law Review Volume 1 Issue 7 Article 2 1914 A Treatise on the Law of Waiver Saul Gordon Follow this and additional works at: https://ir.lawnet.fordham.edu/flr  Part of the Law Commons Recommended Citation Saul Gordon, A Treatise on the Law of Waiver, 1 Fordham L. Rev. 489 (1914). Available at: https://ir.lawnet.fordham.edu/flr/vol1/iss7/2 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact tmelnick@law.fordham.edu. Fordham Law Reviewa dereliction legally defined and declared sufficient and never on theadmissions or consent of the parties." (Bishop, Marr., Div. &Separ., Vol. 1, p. 1265). In the absence of proof of the plaintiff'sallegations, the Court is forbidden to grant the separation.' Yet"the parties may make an agreement, which will become an order ofthe Court, to do without sentence the thing prayed, or enter intoany other reasonable form of separation and the Court will specific-ally enforce it." This is precisely the nature of separation agree-ments, and, strange as it may seem, they will be upheld on theground of public policy above alluded to, or will be set aside underthe tests set out in the cases cited.BOOK REVIEWS"A TREATISE ON THE LAW OF WAIVER," by Renzo D. Bowers(The V. H. Courtright Publishing Co.)This work does not, like so many others, thresh old straw.While the law of waiver has served as the subject of some admir-able essays (see 28 Am. & Eng. Encyc. of Law (Ist Ed.), 524,title "Waiver"; 29 Am. & Eng. Encyc. of Law (2nd Ed.), 1089,title, Id.), this is the first book, we believe, which is devoted ex-clusively to that topic. Hence, it is somewhat of a pioneer, and, assuch, naturally excites the keenest interest. As a treatise, however,it must be confessed that the book is a disappointment.Whether wisely or not, it has become customary for reviewersto refrain from commenting upon the style displayed in a treatise.But, at the risk of being accused of pedantry, we cannot forbearalluding to the carelessness in composition, which is evidenced inthis work. The perspicuity of almost every page in the book mightbe improved, by the judicious elimination of pleonasms. Fre-quently, the sentences in the work rival in length, but not in bril-liancy of construction, those of Burke, as the following one (Sec.196) well indicates: "Privileged communications between a patientand his physician may be waived by the patient, or by his attorney.personal representative, though not by an executor in an action torevoke a will, heir at law, this however, being denied under a stat-ute prohibiting a physician from testifying Ykithout the consent ofThe Fordham Monthlyhis patient, assignee of an insurance policy beneficiary, guardian.of a minor, parents of a child treated b$ the physician; but not,however, by the husband of the patient, and it is even held that onlythe patient can waive the privilege."Even more serious, perhaps, than the long anl redundant sen-tences, which are so constantly indulged in, is the yiolation of theKing's English (see e.g., p. 21; where "either" is used instead of"any"; and p. 23, where a sentence in Sec. 8 seems meaningless,and p. 219, where two sentences in Sec. 220 are printed as one).A distinguished jurist wisely has observed that "definitions aredangerous" (Andrews Bros. Co. v,. Youngston Coke Co., 86 Fed.Rep. 585, 588 per Lupton, J.). The truth of his observation issustained by this work. In it (Sec. 1), "waiver" is defined as "thevoluntary abandonment or surrender, by a capable person, of a rightknown by him to exist, with the intent that such right shall be sur-rendered and such person forever deprived of its benefit." Not-withstanding its length, this definition is too narrow; it ignores thequalification that an agreement- to waive a right is void, if it is con-trary to public policy (see e. g., Mabee v. Crozier, 22 Hun. 264,where an agreement to waive usury, and not to set it up as a de-fense, was held void).Again, the author falls into a curious error, by asserting (Sec.2) that a waiver "may be shown . . .. by the doing or forbearing(sicl) to do something inconsistent with the existence of a rightor an intention to rely upon it." It is not a little surprising, at thislate day, to note a writer apparently doubting (Sec. 4) that consid-ation is a detriment suffered by the promisee, at the request of thepromisor. In dealing with waivers contained in bills and notes(Secs. 74, 75), the author ignores the section in the uniform Nego-tiable Instruments Law (Sec. 81 of the New York act relating there-to). Indeedi a careful examination of the chapter on commercialpaper (p. 79, et seq.,) fails to disclose a single reference to the uni-form Negotiable Instruments Law, although, curiously enough, theworks of Ryles and Chitty are referred to.On page 342, the author states (Sec. 343), without qualification,that "a party cannot waive a tort and bring an action in assumpsitagainst the tort feasor, except where the property has been con-verted into money or its equivalent." At page 348. however, thisis shown not to be the universal rule.SAUL GoRDON.

A Treatise on the Law of Waiver

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A Treatise on the Law of Waiver

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