Contract Law: Doctrine of Waiver

“The law of waiver seems to be a technical doctrine, introduced and applied by the court for the purposes of defeating forfeitures… While the principle may not be easily classified, it is well established that, if the words and acts of the [promisor] reasonably jusitfy the conclusion that with full knowledge of all the facts it intended to abandon or not to insist upon the particular defense afterwards relied upon, a verdict or finding to that effect establishes a waiver, which if it once exists, can never be revoked. As already said, the doctrine of waiver is to relieve against forfeiture. It requires no consideration for a waiver, nor any prejudice or injury to the other party.” Clark v. West, 193 N.Y. 349 (1908).

“A waiver has been defined to be the voluntary and intentional relinquishment of a known right. It is voluntary and implies an election to dispense with something of value, or forego some advantage which the party waiving it might at its option have demanded or insisted upon, and this definition is supported by many cases….” Id.

Whether or not a promisor can waive a term in a contract depends on whether that term is a condition of part of the consideration of a contract. Without consideration, a contract is unenforceable, thus consideration cannot be waived.

“The waiver cannot be the consideration or subject matter, but of an incident to the method of performance. a term can be waived if the consideration remains the same. When the defendant has the work he bargained for, and… he has waived one of the [incidental] conditions as to the manner in which it was to have been done…. [He has] created a situation to which the doctrine of waiver very precisely applies.” Id.

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Tags: Contracts, Law School

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