implied waiver in Massachusetts

2020He further argues that, after we infer that the word "knowingly" modifies the element of discharge, we should apply the analysis from Cassidy, 479 Mass. at 534 , to require knowledge of all elements of the statute.

2015In reading statutes to determine whether there has been an implied waiver of sovereign immunity, courts have applied “stringent” rules of construction, Woodbridge, 384 Mass. at 42 , “reluctant to infer a private cause of action from a statute in the absence of some indication from the Legislature supporting such an inference.” Loffredo v. Center for Addictive Behaviors, 426 Mass. 541, 544 (1998).

2012J. 773 , 808 (2009) We decline also to adopt the Thompkins approach to waiver, i.e., that when Miranda warnings have been given and understood, “an accused’s uncoerced statement establishes an implied waiver of the right to remain silent.” Thompkins, supra at 2262 .

2010Without such a warning, the defendant claims there was an inadequate basis for the judge to conclude that the defendant was sufficiently informed to warrant an implied waiver of his right to counsel. 1 Because we view the colloquy as being inadequate to support a finding of a knowing waiver of counsel in these circumstances, and because “the right to the assistance of counsel is essential to individual liberty and security, and to a fair trial, its erroneous denial can never be treated as harmless error,” we must reverse. 2 Commonwealth v. Means, 454 Mass. 81, 88-89 (2009), citing Chapman v. C

1998G.L.c. 39, §23B (1984 ed.JThe defendant board conceded that meeting privately with its attorney to discuss the proposed contract did not come within any of the exceptions, but argued that there was, or should be, an implied exception for meetings between a governmental body and its counsel to enable the lawyer to offer legal advice and opinions in confidence. 395 Mass. at 632 .

1997Co., 189 Mass. 555 (1905), that an incontestability clause may be reasonably construed as having an implied exception for fraud.

1997Id. at 557-558 .

1990In O’Donnell v. Bane, 385 Mass. at 120-121 , the theory found to have been impliedly waived had not been pleaded, and no objection had been taken to instructions omitting reference to that theory.

1971Woburn v. Henshaw, 101 Mass. 193, 200 .

1936We think that common sense, to say nothing of the equity of the proposition, prevents our adoption of such a rigid rule as set forth in National Hudson River Bank v. Reynolds, 57 Hun. 307.

1936Martin v. Walker, 93 W.

1909Scott v. Harris, 113 Ill. 447 .

1907In the words of the court in Shipman v. Protected Home Circle, 174 N. Y. 398, 405 , “It is a fundamental, though unexpressed, part of the original contract that the insured should not intentionally cause his own death.” This is equivalent to saying that as a matter of construction of the contract, there is, in the promise to pay on the death of the insured, an implied exception of death by his own intentional act while he is of sound mind.

1905In Wheelton v. Hardisty, 8 El. & Bl. 232, 283, Lord Campbell interpreted a provision that a contract should be indefensible, as meaning indisputable, “ subject to the implied exception of personal fraud which will vitiate every contract.” In Massachusetts Benefit Assoc. v. Robinson, 104 Ga. 256 , the court said, “ A policy providing generally that it should be incontestable from its date, but silent on the subject of defending upon grounds originating in fraud, would still be a valid contract; the waiver of the right to defend on the ground of fraud not being the subject of express stipulation