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, to lease agreements, or even in user agreements with social media platforms. If one would only take time to read the fine print, there are usually words there where the customer or end user would limit or all together waive any right to claim liability from the counter-party.

But a waiver is not always valid. It is not always sufficient to excuse one from obligations under the law.

Under Article 6 of the Civil Code, 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.

Pursuant to Article 2035 of the Civil Code, no compromise (and by implication, waivers) upon the following shall be valid: the civil status of persons, the validity of a marriage or a legal separation, any ground for legal separation, future support, the jurisdiction of courts, and future legitime.

As a general rule, those guilty of fraud, negligence, or delay in the performance of their obligations and those who in any manner contravene the tenor thereof are liable for damages. As to fraud, the rule is clear: Any waiver of an action for future fraud is void. Responsibility arising from fraud is demandable in all obligations.

Negligence is a trickier issue. The fault or negligence of the obligor consists in the omission of that diligence which is required by the nature of the obligation and corresponds with the circumstances of the persons, of the time and of the place.

If the law or contract does not state the diligence which is to be observed in the performance, that which is expected of a good father of a family shall be required.

Under the Civil Code, responsibility arising from negligence in the performance of every kind of obligation is also demandable, but such liability may be regulated by the courts, according to the circumstances. In other words, liability may be regulated by the court in case there is a valid waiver.

We say “valid” waiver because there are prerequisites to be met before 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) an intention to relinquish such right.

A valid waiver requires that it not only must be voluntary, but must be knowing, intelligent, and done with sufficient awareness of the relevant circumstances and likely consequences.

Related to this is the presumption that a person takes ordinary care 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 and Intergames Inc. (15 March 2017, GR 164749) is illuminating.

Petitioners’ minor son died after being bumped by a recklessly driven passenger jeepney along the route of the marathon sponsored by respondent. It was respondent’s contention that petitioners’ son was allowed to join the marathon upon his waiver of all rights and causes of action arising from his participation in the marathon.

On appeal, the Court of Appeals found that under the doctrine of assumption of risk, there was voluntarily exposure to the risks involved in the marathon.

The Supreme Court reversed this finding. It found that the waiver signed by petitioners’ son, then a minor, was not an effective form of express or implied consent in the context of the doctrine of assumption of risk.

A person does not comprehend the risk involved in a known situation because of his youth, or lack of information or experience, and thus will not be taken to consent to assume the risk.

In fact, the waiver stated the risks involved risks such as stumbling, suffering heatstroke, heart attack and other similar risks, but it did not consider vehicular accident as one of the risks included in the said waiver.

Nevertheless, the court found the marathon organizer, and not respondent as mere sponsor, to be the party liable.

In the next article, we will discuss waivers in the context of labor and employment.

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