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 Montana, a waiver of contract rights must be a knowing and voluntary relinquishment of those rights. This means that the party waiving the rights must do so with full awareness and intention. Montana law recognizes that waivers can be express or implied, but they must be clear and unambiguous to be enforceable. Non-waiver provisions are commonly included in contracts to clarify that the failure to enforce a right or provision at one time does not prevent a party from enforcing that right in the future. These provisions are designed to protect parties from inadvertently losing their rights through inaction or oversight. In the context of insurance and commercial contracts, such non-waiver clauses are particularly prevalent and serve to maintain the contractual rights unless a clear and deliberate decision to waive them is made. As with any contract issue, the specific language of the contract and the circumstances surrounding any alleged waiver would be critical in determining the legal outcome.