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 North Dakota, a waiver of contract rights must be made knowingly and voluntarily, which means the party waiving the rights must do so with full awareness and intention to relinquish specific rights or benefits. This principle is consistent with general contract law principles that require a clear and unequivocal intent to waive contractual rights. Non-waiver clauses are often included in contracts to clarify that the failure to enforce a right or provision does not imply that a party has waived their right to do so in the future. These clauses are designed to protect parties from inadvertently losing their rights through inaction or forbearance. North Dakota courts will generally enforce non-waiver provisions as long as they are clearly stated within the contract. However, it is important to note that specific circumstances and the conduct of the parties can sometimes override non-waiver clauses, particularly if the conduct indicates a clear intent to waive the rights or if the other party has relied on the conduct to their detriment.