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 that the party waiving the rights must do so with full awareness and intention to relinquish specific rights or benefits outlined in the contract. This aligns with the general legal principle that waivers should be clear and unambiguous. North Dakota courts will typically uphold waivers if they meet these criteria. Additionally, contracts in North Dakota often contain non-waiver clauses. These clauses state that if a party fails to exercise or enforce a right or remedy under the contract, it does not result in a waiver of that right or any other rights. Such clauses are designed to protect parties from inadvertently losing their rights due to inaction or oversight. Non-waiver provisions are particularly prevalent in insurance and commercial contracts, ensuring that parties retain their contractual rights unless an explicit and intentional waiver is made.