E. Waiver

E. Waiver of Rights (Civil Code, art. 6)

> Article 6. 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. (4a)

Waiver

It is a voluntary and intentional relinquishment or abandonment of a known existing legal right, advantage, benefit, claim or privilege, which except for such waiver the party would have enjoyed.

The voluntary abandonment or surrender, by a capable person, of a right known by him to exist, with the intent that such right shall be surrendered and such person forever deprived of its benefit; or such conduct as warrants an inference of the relinquishment of such right; or the intentional doing of an act inconsistent with claiming it. (F.f. Cruz & Co., Inc. v. HR Construction Corp., G.R. No. 187521, March 14, 2012)

NOTE: Waivers can be express or implied, however, it cannot be presumed. It must be clearly and convincingly shown, either by express stipulation or acts admitting no other reasonable explanation.

Rights which cannot be waived

• Right to live and right to future support.
• Right to personality and family rights.
• Right to future inheritance.

NOTE: A waiver of future inheritance is generally prohibited. If an heir repudiates an inheritance that has already accrued to the prejudice of the heir’s own creditors, the creditors may petition the court for authority to accept it in the heir’s name. The acceptance benefits them only to the extent necessary to cover their credits. (NCC, Art. 1052; Albano, 2013)

NOTE: If a candidate for mayor agrees to split his term of office with the vice-mayor to prevent the latter from running against him, the contract is void by reason of public policy. (Albano, 2013)

Waiver of rights

GR: Rights may be waived.

Requisites of a valid waiver:

• Waiving party must actually have the right he is renouncing;
• He must have full capacity to make the waiver;
• Waiver must be clear and unequivocal;
• Waiver must not be contrary to law, public order, public morals, etc.; and
• When formalities are required, they must be complied with.

Q: Edna filed an action for support against Colonel Otamias. A deed of assignment was executed by Otamias where he waived 50% of his pension benefits in favor of Edna and his children. The RTC issued a notice of garnishment to AFP Pension and Gratuity Management Center and ordered the automatic deduction of support from the pension benefits of Colonel Otamias. The CA annulled the order of the RTC and cited PD No. 1638 which provides for the exemption of the monthly pension of retired military personnel from execution and attachment. Did Colonel Otamias validly waive the exemption granted by PD no. 1638 upon the execution of the deed of assignment?

A: YES. 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. When Colonel Otamias executed the Deed of Assignment, he effectively waived his right to claim that his retirement benefits are exempt from execution. The right to receive retirement benefits belongs to Colonel Otamias. His decision to waive a portion of his retirement benefits does not infringe on the right of third persons, but even protects the right of his family to receive support. The Deed of Assignment executed by Colonel Otamias was not contrary to law; it was in accordance with the provisions on support in the Family Code. Hence, there was no reason for the AFP PGMC not to recognize its validity. (Edna Mabugay- Otamias, Jeffren M. Otamias and Minor Jemwel M. Otamias, represented by their Mother Edna Mabugay Otamias v. Republic of the Philippines, represented by Col. Virgilio O. Domingo, in his capacity as the Commanding Officer of the Pension and Gratuity Management Center (PGMC) of the Armed Forces of the Philippines, G.R. No. 189516, April 17, 2017, as penned by J. Leonen)

Kinds of ratification

• Express –the desire of the innocent party to convalidate the contract, or his waiver or renunciation of his right to annul the contract is clearly manifested verbally or formally in writing.
• Implied (tacit) – it is the knowledge of the reason that renders the contract voidable and such reason having ceased, the person who has a right to invoke it should execute an act that necessarily implies an intention to waive his right. (NCC, Art. 1393)