336. Affirmative Defense--Waiver Instruction No 1 Request by Plaintiff Given as Proposed Refused Withdrawn Request by Defendant Given as Modified Requested by Given on Court's Motion Judge Instruction No 1 [Name of defendant] claims that [he/she/it] did not have to [insert description of performance] because [name of plaintiff] gave up [his/her/its] right to have [name of defendant] perform [this/these] obligation[s]. This is called a "waiver." To succeed, [name of defendant] must prove both of the following by clear and convincing evidence: 1. 2. That [name of plaintiff] knew [name of defendant] was required to [insert description of performance]; and That [name of plaintiff] freely and knowingly gave up [his/her/its] right to have [name of defendant] perform [this/these] obligation[s]. A waiver may be oral or written or may arise from conduct that shows that [name of plaintiff] gave up that right. If [name of defendant] proves that [name of plaintiff] gave up [his/her/its] right to [name of defendant]'s performance of [insert description of performance], then [name of defendant] was not required to perform [this/these] obligation[s]. ___________________________________________________________________________ New September 2003