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 New Mexico, a waiver of contract rights occurs when a party intentionally relinquishes a known right or conducts itself in a manner that is inconsistent with the right's enforcement. Under New Mexico law, waivers must be made knowingly and voluntarily to be effective. This means that the party waiving the right must have full knowledge of the right and the intention to relinquish it. Non-waiver clauses are often included in contracts to clarify that the failure to enforce a right does not imply that the right is waived. These clauses are designed to protect parties from inadvertently losing their rights due to inaction or oversight. Such provisions are enforceable in New Mexico, provided they are clearly stated in the contract and do not conflict with any statutory provisions or public policy. In the context of insurance and commercial contracts, non-waiver provisions help ensure that parties maintain their contractual rights even if they do not immediately enforce them.