shall not waive

English translation: will not constitute a waiver of

GLOSSARY ENTRY (DERIVED FROM QUESTION BELOW)
English term or phrase:shall not waive
Selected answer:will not constitute a waiver of
Entered by: Maria Diaconu

11:05 Feb 5, 2017
English language (monolingual) [PRO]
Law/Patents - Law: Contract(s)
English term or phrase: shall not waive
Dear colleagues,

Would someone who is an English native speaker and experienced in legalese explain to me the use of ”shall not waive” in the following sentence? Please give me some synonyms. So far I have seen ”waive” used only for persons and I wonder how could a disclosure waive or not waive something. Thank you!

Any inadvertent or unauthorized disclosure shall not compromise or waive the confidentiality of such data.
Maria Diaconu
Romania
Local time: 13:36
shall not constitute a waiver of
Explanation:
Actually "waive", by its dictionary definitions, does not have to have a personal subject:

"Legal Definition of waive
1 : to relinquish (as a right or privilege) voluntarily and intentionally <the defendant waived a felony hearing on the charge — National Law Journal> — compare forfeit, reserve
2 : to refrain from enforcing or requiring <some statutes waive the age requirement — W. M. McGovern, Jr. et al.>"
https://www.merriam-webster.com/dictionary/waive

Here, in my opinion, "waive" means "constitute a waiver"; that is, if the data are disclosed inadvertently or without authorization, it shall not be considered that the confidentiality of the data has been waived by reason of such disclosure. It's the meaning expressed by standard "no waiver" clauses:

"No Waiver. Neither a failure nor a delay on the part of either the Trustee or the Holders of Notes in exercising any right, power or privilege under this Article X shall operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or further exercise of any right, power or privilege"
https://www.lawinsider.com/clause/no-waiver
Selected response from:

Charles Davis
Spain
Local time: 12:36
Grading comment
Thank you all for your valuable input!
4 KudoZ points were awarded for this answer



SUMMARY OF ALL EXPLANATIONS PROVIDED
4 +6shall not constitute a waiver of
Charles Davis
5 +2does not result in a change
Charlesp
4 +2shall not mean/imply/have as consequence that such data is no longer confidential
Daryo


Discussion entries: 5





  

Answers


36 mins   confidence: Answerer confidence 4/5Answerer confidence 4/5 peer agreement (net): +6
shall not constitute a waiver of


Explanation:
Actually "waive", by its dictionary definitions, does not have to have a personal subject:

"Legal Definition of waive
1 : to relinquish (as a right or privilege) voluntarily and intentionally <the defendant waived a felony hearing on the charge — National Law Journal> — compare forfeit, reserve
2 : to refrain from enforcing or requiring <some statutes waive the age requirement — W. M. McGovern, Jr. et al.>"
https://www.merriam-webster.com/dictionary/waive

Here, in my opinion, "waive" means "constitute a waiver"; that is, if the data are disclosed inadvertently or without authorization, it shall not be considered that the confidentiality of the data has been waived by reason of such disclosure. It's the meaning expressed by standard "no waiver" clauses:

"No Waiver. Neither a failure nor a delay on the part of either the Trustee or the Holders of Notes in exercising any right, power or privilege under this Article X shall operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or further exercise of any right, power or privilege"
https://www.lawinsider.com/clause/no-waiver

Charles Davis
Spain
Local time: 12:36
Native speaker of: English
PRO pts in category: 72
Grading comment
Thank you all for your valuable input!

Peer comments on this answer (and responses from the answerer)
agree  MPGS: great explanation! :-)
18 mins
  -> Many thanks! Have a good Sunday :)

neutral  Daryo: agree with all of it, but is " constitute a waiver of" a synonym of "waiver"? // My point is that it's more than a synonym it's the same word!
21 mins
  -> Yes, here it is a synonym of "waive" (not "waiver"). "Shall not waive" means "shall not signify that it has been waived". // The question asked is specific: how can "waive" have an inanimate subject? The meaning of "waive" is already understood.

agree  Yasutomo Kanazawa
1 hr
  -> Thanks, Yasutomo-san :)

agree  Tina Vonhof (X): Agree also with Björn: 'will' not constitute a waiver ('shall' means 'must').
3 hrs
  -> I don't object to "shall" here; it means those concerned must not deem it to be a waiver. Anyway, thanks, Tina :)

agree  Björn Vrooman: Maybe you'd like to add something in the d-box. Agree with your explanation about "waive," but in my opinion, "shall" needs to go.
3 hrs
  -> Thanks, Björn! I don't feel very strongly about it; I don't really object to "shall" here.

neutral  Natalia Postrigan: While the explanation is accurate, I have to agree with Daryo here. If the poster doesn't understand the meaning of "waiving", explaining it as "a provision of a waiver" might not help.
6 hrs
  -> But the poster clearly does understand the meaning of "waive". Her question is specific: how can a disclosure waive something, so that's the question I've answered. A definition or explanation of the meaning of "waive" is not required here.

agree  orientalhorizon
19 hrs
  -> Thanks, orientalhorizon :)

agree  acetran
1 day 1 hr
  -> Thanks, acetran :)
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56 mins   confidence: Answerer confidence 4/5Answerer confidence 4/5 peer agreement (net): +2
shall not waive the confidentiality of such data
shall not mean/imply/have as consequence that such data is no longer confidential


Explanation:
Any inadvertent or unauthorized disclosure shall not compromise or waive the confidentiality of such data
=
Any inadvertent or unauthorized disclosure shall not mean/imply/have as consequence that such data is no longer confidential

literally : shall not mean that the holder of the data renounced to its confidentiality



Daryo
United Kingdom
Local time: 11:36
Specializes in field
Native speaker of: Native in SerbianSerbian, Native in FrenchFrench
PRO pts in category: 16

Peer comments on this answer (and responses from the answerer)
agree  Natalia Postrigan
6 hrs
  -> Thanks!

agree  Charlesp
20 hrs
  -> Thanks!
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21 hrs   confidence: Answerer confidence 5/5 peer agreement (net): +2
does not result in a change


Explanation:
the obligation to maintain confidentiality of such data.

It simply means that if the party whom is demanding confidentiality inadvertently releases the information, or if someone else makes an unauthorized disclosure of the information, the information shall nevertheless remain confidential.

Charlesp
Sweden
Local time: 12:36
Specializes in field
Native speaker of: English
PRO pts in category: 11

Peer comments on this answer (and responses from the answerer)
agree  acetran
4 hrs
  -> thanks for the wave!

agree  Daryo: another way of saying it
1 day 5 hrs
  -> As they said they didn't want "legalese" - I presented an option in plain language.
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