What is a waiver?
Loan documents (generally the note, security instrument and
guaranty) often contain waiver provisions. Some common waivers are
indemnity provisions, waiver of the right to jury trial, waiver of
defenses and waiver of notice. While parties seeking waivers might
favor sneaking such provisions into the document, this can often
backfire—and it is sure to for the waivers litigants care
about most.
A "waiver" is the relinquishment of a right that is
both (1) knowing and (2) voluntary. One way to help your lawyer
show that a waiver in a contract is both knowing and voluntary is
to make it conspicuous in the document.
How do I make a waiver
conspicuous?
Simply put, a conspicuous waiver is one that jumps out at you.
Use of ALL CAPS, contrasting type or color, for example, qualifies
as conspicuous. Dresser Indus., Inc. v. Page Petroleum,
Inc., 853 S.W.2d 505, 511 (Tex.1993). The most common, and
probably best practice, is to make a provision
