Key Takeaways

  • A waiver agreement involves the intentional and voluntary relinquishment of contractual rights.
  • Waivers can be implied through conduct or expressly stated in writing or action.
  • Rights related to delivery, payment, exclusivity, and intellectual property can often be waived.
  • Silence alone is not typically considered a valid waiver.
  • Waivers can play a crucial role in contract enforcement and dispute resolution.
  • A waiver does not always mean full release from a contract—it may only apply to specific rights or obligations.
  • Legal jurisdictions vary; consult an attorney for waiver agreement advice.

A waiver of contract occurs when one party gives up their rights as outlined in a contract they signed.

What Is a Waiver of Contract?

A waiver of contract can happen if the party deliberately fails to take certain actions or takes a positive act to waive the terms of a contract. In order to constitute a legal release or waiver of the contract rights, this action must be intentional and voluntary.

For example, if someone received goods but chose to reject the goods at the time of delivery or turn away the person delivering the goods, this could be considered a waiver of a contract. Another way to waive the contract would be to prepare a written notice of rejection of the goods. However, if the same person refused the goods by accident because they believed they were a different type of product, this would not be considered a contract waiver because the person didn't act internationally or voluntarily.

The laws around contracts vary between states. Any contract questions or issues, including a waiver of contract, should be discussed with a lawyer in your area who understands that state's contract laws.

Legal Enforceability of a Waiver Agreement

To be enforceable, a waiver agreement must meet specific legal standards. The waiving party must:

  • Know the right they are giving up.
  • Intend to relinquish that right.
  • Act voluntarily, without coercion or misrepresentation.

A waiver that meets these criteria may be binding even without written documentation, although written waivers are more straightforward to enforce. Courts will often analyze the context of the waiver—particularly the behavior of the parties—to determine if the waiver was valid. Repeated failures to enforce a right, for example, might lead to an implied waiver.

In addition, waiver agreements are subject to limitations under law. For example, rights that are tied to public interest, such as consumer protections or certain labor rights, may not be legally waivable even if both parties agree.

Common Clauses in a Waiver Agreement

Waiver agreements may contain several standard clauses, which can include:

  • Non-waiver clause: Ensures that the failure to enforce a right on one occasion does not result in a permanent waiver.
  • Entire agreement clause: States that the waiver supersedes prior agreements or understandings related to the waived right.
  • Choice of law clause: Specifies which state's laws govern the waiver.

Including these clauses in a contract or standalone waiver agreement helps define the scope of the waiver and reduce future disputes.

What Types of Contract Rights Can Be Waived?

The rights that can be waived depend on what is outlined in the contract. Contract waivers also vary among specific contracts.

Some contract waiver options include the forfeiting of rights to:

  • Having the exclusive rights to purchase or sell goods
  • Receiving payment for services or products
  • Having the exclusive right to access or use protected or copyrighted material
  • Having a product delivered at a specified time

If you're dealing with a situation involving a waiver of contract, make sure to review the laws around delegation or assignment of contractual duties, usually to a third party. Only certain rights within a contract can have duties transferred to a third party and be waived.

Industry Examples of Waiver Agreements

Waiver agreements are used across various industries and contract types. Some examples include:

  • Real Estate: A tenant may waive the right to break a lease early in exchange for reduced rent.
  • Freelance & Consulting: A client might waive their right to penalize late delivery if the freelancer provides additional services.
  • Intellectual Property: One party might waive enforcement of a copyright or patent clause in licensing agreements.
  • Distribution & Supply Agreements: A supplier might waive minimum order requirements during supply chain disruptions.

Such waivers can be temporary or permanent, and documenting them clearly is crucial to avoid future legal complications.

Can Silence Be Considered a Waiver? 

Generally, silence cannot be considered a waiver because you must indicate an intentional and voluntary decision to waive contract rights.

Waiving your contract rights can occur by:

  • An omission, or failing to complete an act
  • A positive act 

However, staying silent on a specific matter typically will not count as a contract waiver. The party must take steps to relinquish contractual rights to provide that the waiver was handled legally. 

When Silence May Still Impact a Contract

Although silence is not typically seen as a waiver, there are nuanced exceptions. In some cases, courts may interpret a party’s prolonged inaction or repeated failure to enforce rights as an implied waiver. This is especially likely if the silent party benefitted from the other party’s performance without objection.

For instance, if a service provider repeatedly fails to charge late fees (as outlined in the contract) and does not communicate their intent to do so in the future, they may be deemed to have waived that right.

Nonetheless, implied waivers are riskier and less reliable than express ones. Parties are advised to formally document waivers to avoid unintended legal consequences.

What Is a Waiver?

Waiver has a specific meaning in a legal context. This meaning is the voluntary surrender or relinquishment of specific and known privileges or rights. For example, if a business chooses not to charge a late fee to a client when the contract terms expressly outline the imposition of a penalty for a late payment, this could be considered a waiver of contract. In order to be considered a legal waiver, the party or person must take voluntary action and remove their particular ability or right outlined in an agreement.

A waiver can occur when a party takes some form of action or provides written documentation of their decision to waive their rights. The action of waiving rights removes a potential or real liability in the contract. By providing a contract waiver, one party is choosing to relinquish their legal claims or rights on a voluntary basis. 

This action can apply to many different legal scenarios. For example, if two parties are settling a matter in court, one party could submit a waiver to relinquish its rights to continue pursuing further action after the finalization of the settlement. 

Another way to carry out the action required to waive contract rights is acting on the right outlined in an agreement. For example, a contract might include the right to terminate the agreement within the first year. By electing not to terminate the agreement within the first year, the party would waive the right to do so in the future. To be considered a legal waiver, an actual intention to relinquish the right, knowledge of the right, and an existing right must be in place. 

A waiver can be:

  • Implied, based on the conduct that indicates the intent to relinquish the right
  • Express, based on the words from the party waiving its rights

Waiver Agreements vs. Releases and Amendments

While similar in function, waiver agreements differ from other contractual modifications:

  • Waiver: Relinquishes a right or claim without changing the entire contract.
  • Release: Terminates the entire agreement or a specific obligation, often as part of a settlement.
  • Amendment: Formally changes the terms of a contract, typically requiring agreement from all parties.

Understanding these differences ensures that the proper legal instrument is used in each scenario. For example, if a party wants to permanently forgo a right to sue, a release is more appropriate than a waiver.

Best Practices for Creating a Waiver Agreement

To create a legally sound waiver agreement:

  • Use clear, unambiguous language.
  • Define the scope and duration of the waiver.
  • Include the parties’ signatures and date of execution.
  • Specify jurisdiction and governing law.
  • Consult legal counsel, especially for high-value or complex contracts.

Including these elements helps ensure the waiver will hold up in court, particularly if challenged.

Frequently Asked Questions

What is the purpose of a waiver agreement?A waiver agreement allows one party to voluntarily give up certain legal rights or claims that are otherwise enforceable under a contract.

Can a waiver agreement be oral?Yes, but written waivers are easier to prove and enforce. Oral waivers may be valid if they meet the legal standards of intention, knowledge, and voluntariness.

Does a waiver agreement cancel a contract?No. A waiver typically applies to specific rights or obligations within a contract. It does not usually terminate the entire contract.

Are waiver agreements enforceable in every state?Enforceability depends on the jurisdiction and the nature of the rights being waived. Some rights may not be legally waivable.

Where can I get help drafting a waiver agreement?You can post your legal need on UpCounsel to connect with experienced contract attorneys who can draft or review your waiver agreement.

If you need help with a waiver contract, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.