ABSTRACT
An insurer faced with a claim under a policy may have a number of defences available to it. However, the insurer’s conduct can sometimes prevent the insurer from relying on what would otherwise have been perfectly good defences. The defences that the insurer can discard are ones afforded under the express terms of the policy, or by the general law. They may be lost by “waiver” of the insurer’s rights, by “affirmation” of a contract that the insurer could have avoided, or by the insurer “being estopped” from relying on its rights. The word “waiver” can describe two separate doctrines, namely those of “waiver by election” and “waiver by estoppel”. Affirmation is more closely related to waiver by election than to waiver by estoppel. Affirmation of a contract is the keeping in force of a contract which the insurer is entitled to rescind.
