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 is recognized when a party intentionally relinquishes a known right or conducts itself in such a manner that would imply the relinquishment of such right, typically under the contract terms. This waiver must be made knowingly and voluntarily to be effective. Massachusetts courts will generally uphold waivers if they are clear and unambiguous, and the waiving party had full knowledge of their rights. 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. These clauses help to prevent any unintended waivers of contractual rights, especially in commercial and insurance contracts. The presence of a non-waiver clause requires that any waiver of contractual rights be expressed explicitly and agreed upon by the parties to prevent misunderstandings about the enforcement of the contract terms.