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 Virginia, a waiver of contract rights occurs when a party intentionally relinquishes a known right or conducts itself in a manner that warrants an inference of the relinquishment of such right. This waiver can be express, through clear and unequivocal language, or implied, through conduct that indicates an intention to waive a contractual right. For a waiver to be effective, it must be made voluntarily and with the full knowledge of the rights being waived. Virginia courts will generally uphold waivers that meet these criteria. Additionally, many contracts contain non-waiver clauses which specify that the failure to enforce a right does not amount to a waiver of that right or any future rights under the contract. These clauses are enforceable in Virginia and help to prevent inadvertent waivers of contractual rights, particularly in commercial and insurance contracts. However, even with a non-waiver clause, a party can still intentionally and knowingly waive its rights under the contract.