Waiver and release
Waiver and release

The following Commercial guidance note provides comprehensive and up to date legal information covering:

  • Waiver and release
  • Defining waiver
  • Types of waiver
  • Waiver and breach
  • The purpose of waiver clauses
  • Waiver clauses
  • Content of waiver clauses
  • Release
  • Release clauses

Defining waiver

In the law of contract, the term ‘waiver’ is most commonly used to denote the granting of a concession by one party to a contract, whereby it does not insist on the precise performance by the other party of a duty under the contract, whether before or after any breach of the term being waived. Alternatively, waiver is seen as a party giving up its rights to take action or enforce its rights under a contract, thereby obliging the other party to perform its obligations.

Types of waiver

Waiver may be express or implied from conduct. In either case it must amount to an unambiguous representation arising as the result of a positive and intentional act done by the party granting the concession with knowledge of all the material circumstances.

Furthermore, it seems that for a waiver to operate effectively, the party to whom the concession is granted must act in reliance on that concession.

An implied waiver may arise where there is a positive and intentional act of concession by a party with knowledge of all relevant circumstances and where the other party acts in reliance on that concession. See Practice Note: Contract variation.

Waiver and breach

Where a party is in breach of contract, the innocent party (or parties) has several options. The options are