April 11, 2019 Contract Boilerplate Series

Avoiding Unintentional Waiver of a No-Waiver Clause

Will a boilerplate no-waiver clause preserve a party’s rights when it has acquiesced to non-conforming performance?

By Julia K. Whitelock

Waiver is an often-raised affirmative defense to a breach of contract claim. Waiver is typically defined as a voluntary, intentional relinquishment of a known right. Including boilerplate language known as a “no-waiver,” “nonwaiver,” or “anti-waiver” clause allows a plaintiff to decide whether to strictly enforce provisions of a contract without losing its right to assert a breach. However, courts are divided on whether no-waiver clauses should be strictly enforced or whether course of performance may establish that a nonwaiver clause has been waived.

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