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 South Dakota, 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. The courts in South Dakota will generally uphold waivers if they are clear and unambiguous, and if they demonstrate that the waiving party intended to forgo the rights in question. Non-waiver provisions are also recognized in South Dakota and 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. Such provisions help to protect parties from inadvertently losing their rights through inaction or oversight. In commercial and insurance contracts, these non-waiver clauses are particularly prevalent to ensure that the contractual rights and obligations are preserved even if not immediately enforced.