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 Massachusetts, a waiver of contract rights must be made knowingly and voluntarily to be considered valid. This means that the party waiving the rights must do so with full awareness and understanding of the rights they are relinquishing. The courts in Massachusetts will generally uphold waivers if they are clear and unambiguous, and if they demonstrate that the waiving party intended to waive specific rights under the contract. Additionally, 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. Such clauses are enforceable in Massachusetts and help to protect parties from inadvertently waiving their rights through inaction or forbearance. It is important for parties to a contract to carefully consider the implications of any waiver and the language of non-waiver provisions to ensure their rights are preserved.