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Contract—waiver— by conduct—what must be shown—delay in enforcing right — not per se evidence of waiver by conduct
The onus is upon a party asserting waiver to prove it, but although, as in all civil cases, the onus may be discharged on a balance of probability, it is not easily discharged. In the case of waiver by conduct, the conduct must be plainly inconsistent with an intention to enforce the right in issue. A party does not lose his rights by mere delay, even if he is aware of the fact that another has infringed his rights. Delay or "standing by" may be taken into consideration by the court in arriving at the conclusion as to whether or not the party did or did not lose his rights.
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