A waiver of contract occurs when a party to a contract waives or gives up one or more rights or benefits it has under the terms of the contract. A party generally does not waive its rights unless the waiver is made voluntarily and with knowledge of the rights being waived—known as a “knowing and voluntary relinquishment of rights.”

Contracts often include a non-waiver paragraph or provision stating that a party’s (or the parties’) failure to pursue or exercise certain rights under the contract does not constitute a waiver of those or other rights under the contract. Such non-waiver provisions are common in insurance contracts and other commercial contracts.

In California, a waiver of contract rights occurs when a party intentionally relinquishes a known right or conducts itself in such a manner that it is deemed to have given up certain contractual rights or benefits. This waiver must be made knowingly and voluntarily to be effective. California courts require clear and convincing evidence to prove a waiver of contractual rights. Non-waiver clauses are commonly included in contracts to clarify that the failure to enforce a right or provision does not amount to a waiver of that right or any future rights under the contract. These clauses are enforceable under California law, provided they are clearly stated within the contract. Such provisions are particularly prevalent in insurance and commercial contracts to prevent any misunderstanding that might arise from a party not strictly enforcing their rights at any given time.