Contract Administration
Waiver
Also: Non-Waiver, Waiver Clause, No Waiver, Waiver of Rights · Non-Waiver, Waiver Clause, No Waiver, Waiver of Rights, Waiver Provision
A waiver is the voluntary relinquishment of a known contractual right. In commercial contracts, a waiver clause — often called a non-waiver clause — typically states that a party's failure to enforce a right does not mean it has given up that right permanently.
The clause is designed to protect parties from inadvertently losing their contractual rights simply by not exercising them immediately.
Lawyer Explanation
A waiver is the intentional or voluntary relinquishment of a known right. In contract law, a waiver may arise expressly — through a written or oral statement — or impliedly, through a party's conduct.
A non-waiver clause is a boilerplate provision stating that a party's failure to exercise or delay in exercising a contractual right does not constitute a waiver of that right. It is intended to prevent a course of conduct — such as repeatedly accepting late payments — from being interpreted as a permanent waiver of the right to require timely payment.
Whether a non-waiver clause is effective in a particular situation depends on the contract language, the specific conduct, and applicable law.
What It Actually Does
A non-waiver clause answers: "If I let something slide this time, does that mean I've permanently given up my right to enforce that provision?" For example, if a landlord repeatedly accepts rent payments a few days late without objection, a non-waiver clause may protect the landlord's right to later insist on timely payment — preventing the tenant from arguing that the landlord waived the right to enforce the payment deadline.
Why It Matters
Without a non-waiver clause, a party that consistently fails to enforce a contract right may find that it has inadvertently waived that right through its conduct.
The non-waiver clause provides a contractual basis for preserving rights even when they are not exercised immediately. However, it is not a guarantee — courts may still find an implied waiver in extreme cases where the conduct is sufficiently inconsistent with the claimed right.
Example
A software vendor's agreement requires the customer to pay invoices within 30 days. The vendor accepts several late payments without objection.
When the customer pays a later invoice 45 days late, the vendor sends a notice of breach. The customer argues that the vendor waived the payment deadline by accepting late payments in the past.
The non-waiver clause in the agreement may support the vendor's position that the prior acceptance of late payments did not waive the right to enforce the payment deadline going forward.
Common Language You May See
"No failure or delay by either party in exercising any right, power, or remedy under this Agreement shall operate as a waiver of such right, power, or remedy. No single or partial exercise of any right, power, or remedy shall preclude any other or further exercise thereof."
What Stewart Law Looks For
- Does the contract include a non-waiver clause?
- Does the clause require waivers to be in writing?
- Does the clause address both express and implied waivers?
- Is the non-waiver clause mutual?
- Does the clause address the effect of a course of dealing on contractual rights?
- How does the waiver clause interact with cure period and notice provisions?
- Are there any specific rights that are subject to different waiver rules?
Common Red Flags
A waiver provision deserves closer attention when it:
- is absent from the contract, leaving the parties' rights subject to implied waiver through conduct
- fails to require waivers to be in writing, allowing oral waivers to be claimed
- is one-sided, protecting only one party from implied waiver
- conflicts with a course of dealing that has already established different expectations
- is silent on whether a specific waiver affects future enforcement of the same right
Perspectives
Customer / Buyer
Both parties benefit from a clear non-waiver clause that preserves their rights even when not exercised immediately. The party receiving performance will generally want assurance that accepting a deficient performance once does not permanently waive the right to require full performance.
Vendor / Seller
The same considerations apply. The party performing under the contract will generally want assurance that its failure to enforce a right immediately does not permanently waive that right.
Florida & Federal Considerations
Florida
Florida courts recognize both express and implied waivers. A non-waiver clause may help preserve contractual rights, but Florida courts may still find an implied waiver in circumstances where a party's conduct is sufficiently inconsistent with the claimed right.
Florida courts have addressed waiver issues in a variety of commercial contract contexts.
Related Terms
Contracts Where You'll Commonly See It
Frequently Asked Questions
Does accepting a late payment waive the right to require timely payment in the future?
Not necessarily if the contract contains a non-waiver clause. However, a pattern of accepting late payments without objection may create a course of dealing that affects the parties' rights. The specific outcome depends on the contract and applicable law.
Can a waiver be oral?
Depending on the contract and applicable law, an oral waiver may or may not be effective. Many contracts require waivers to be in writing to be enforceable.
What is a non-waiver clause?
A non-waiver clause states that a party's failure to enforce a contract right does not constitute a waiver of that right. It is intended to prevent a party from losing its rights simply by not exercising them immediately.
Can a party waive a right without intending to?
In some circumstances, a party's conduct may be interpreted as an implied waiver even without an express statement. Non-waiver clauses are designed to reduce this risk.
Is a waiver permanent?
Not necessarily. A waiver of a specific breach or right may not affect the party's ability to enforce the same right in the future. Whether a waiver is permanent or limited depends on the circumstances and the contract.
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Contract language operates as part of the agreement as a whole.
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