January 01, 2018 Substantive Law

Actions Speak Louder Than Words: Potential Waiver of Written Contractual Provisions

By Matthew A. Moeller

Often you will hear people, including attorneys, say that for something to be enforceable it must be in writing. You almost always hear that concerning the enforceability of contractual provisions. However, things are not always as they seem—or quite that simple. In fact, there is a vast body of law across many different states and industries where courts have found that written contractual provisions were (or have potentially been) waived by the conduct of the parties, essentially resulting in a new or at the very least modified agreement. At common law, an oral agreement is sufficient to modify a written contract notwithstanding the existence of a “no oral modification” provision; yet, several statutes including the Uniform Commercial Code have considerably curtailed this rule and permitted contracting parties to make binding agreements to the effect that they can be modified only by a writing. The result has been a state-by-state patchwork of jurisprudence, often turning on the nature of the contract at issue.

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