In Cyprus, the defences of waiver and promissory estoppel are often raised to block claims where a party appears to have abandoned a right or made a promise not to enforce it. These principles, rooted in English common law and applied in Cypriot jurisprudence, aim to ensure fairness where one party’s conduct leads another to reasonably rely on the abandonment of a right. Below is a concise guide to when these defences apply, why they matter, and how courts assess them.
1 | What is Waiver?
Waiver occurs when a party voluntarily relinquishes a known right, claim, or privilege, preventing them from later enforcing it. According to Investylia Public Company Ltd v. Christou Ioannidi (Civil Appeal 8/09), waiver is defined as “the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted” (Banning v. Wright [1972] 2 All ER 987). In Cyprus, the term “waiver” is interpreted as renunciation implying a clear, intentional act, either express or implied through conduct inconsistent with maintaining the right (Halsbury’s Laws of England, 5th ed., Vol. 47, para. 250).
Key elements include:
- Consent: Waiver requires the right-holder’s agreement, either explicitly (e.g., written or verbal) or implicitly through unequivocal conduct (Selwyn v. Garfit (1888) 38 Ch.D. 273).
- Unequivocal conduct: The conduct must clearly show intent to abandon the right (Louis Tourist v. Elia (1992) 1 A.A.D. 98).
- Delay alone is insufficient: Mere inaction or delay does not constitute waiver unless it unmistakably signals abandonment (Selwyn v. Garfit).
2 | What is Promissory Estoppel?
Promissory estoppel prevents a party from enforcing a right if they promised not to do so, and the other party relied on that promise to their detriment. While related to waiver, it focuses on fairness and detrimental reliance rather than complete abandonment of a right. In Cyprus, it often arises when a party’s conduct or representations lead another to act in a way that would make enforcing the original right inequitable (Pelekanou v. Pelekanou (2001) 1 A.A.D. 1768).
Key requirements include:
- A clear promise or representation not to enforce a right.
- Reasonable reliance by the other party, altering their position (e.g., incurring costs or forgoing opportunities).
- Inequity if the promise is retracted, as it would unfairly harm the relying party.
3 | When Do These Defences Apply?
Courts in Cyprus allow waiver or promissory estoppel in cases where:
- Contractual or statutory rights: A party waives a right granted by a contract or law, such as a landlord’s right to claim a rent increase (Investylia).
- Clear conduct or promise: The right-holder’s actions (e.g., prolonged inaction after expressing intent not to pursue a claim) or explicit statements indicate waiver or a promise not to enforce.
- Detrimental reliance: For promissory estoppel, the other party must have acted on the promise, such as making financial arrangements based on the belief the right would not be enforced (Pelekanou).
- Good faith: Courts emphasize the need for good faith. Attempts to “trap” the other party by inducing reliance and then enforcing the right may fail (Pelekanou).
4 | When Are These Defences Rejected?
Courts may reject waiver or promissory estoppel if:
- No unequivocal conduct: The right-holder’s actions do not clearly show intent to abandon the right. For example, in Investylia, a five-year delay in claiming a contractual right was insufficient without clear evidence of consent to waive.
- No detrimental reliance: For promissory estoppel, the relying party must prove they changed their position to their detriment. Mere inconvenience is not enough.
- Insufficient evidence: The burden lies on the party raising the defence to prove waiver or estoppel on the balance of probabilities (Investylia).
- Bad faith: If the right-holder’s conduct was deceptive or lacked good faith, courts are less likely to uphold the original claim but may also scrutinize the defence (Pelekanou).
5 | Practical Advice for Claimants and Defendants
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Do |
Avoid |
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Document all communications clearly to avoid ambiguity about intent to enforce or waive rights. |
Assuming delay alone waives a right—courts require clear evidence of consent or unequivocal conduct. |
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Act promptly to assert rights, notifying the other party in writing to avoid estoppel claims. |
Making promises not to enforce rights unless you intend to follow through, as reliance may bind you. |
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Keep records of actions taken in reliance on another’s promise or conduct for estoppel claims. |
Acting in bad faith to induce reliance, as courts prioritize fairness (Pelekanou). |
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Seek legal advice early to assess whether your conduct could imply waiver or trigger estoppel. |
Ignoring the other party’s conduct, which may strengthen their defence of waiver or estoppel. |
How Phoebus, Christos Clerides & Associates LLC Can Assist
Our firm has extensive experience navigating the complexities of waiver and promissory estoppel in Cyprus:
- Strategic advice: We assess your conduct and the counterparty’s actions to build or counter these defences.
- Evidence preparation: We compile robust documentation to prove or disprove unequivocal conduct or detrimental reliance.
- Negotiated outcomes: We craft settlements that protect your rights while addressing fairness concerns.
- Litigation support: From defending against estoppel claims to enforcing rights despite delay, we provide clear, results-driven representation.
Starting with a confidential consultation, we ensure your position is protected with practical, legally sound solutions tailored to your case.
Note: Be vigilant about your conduct and that of your counterparty. Ambiguity or delay can weaken your position or bolster a defence of waiver or promissory estoppel. For expert guidance, contact Phoebus, Christos Clerides & Associates LLC for a no-obligation consultation to secure your rights and achieve clarity in complex disputes.