Waiver and release

The following Commercial practice 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

Waiver and release

Defining waiver

In the law of contract, the term ‘waiver’ may have different meanings but 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. For further details of other possible meanings, see: Waiver: Halsbury’s Laws of England [251].

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.

Waiver and breach

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

  1. take action against the defaulting party for breach of contract

  2. complain about the breach but take no action, or

  3. ignore

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