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 is recognized when a party intentionally relinquishes a known right or conducts itself in such a manner that would lead the other party to believe that a right has been relinquished. This must be a knowing and voluntary act. Virginia courts generally uphold the principle that waivers must be clear and unambiguous, and the party claiming the waiver has the burden of proving it. Non-waiver clauses are enforceable in Virginia and serve to protect parties from inadvertently waiving their rights through inaction or silence. Such clauses are particularly common in insurance and commercial contracts, ensuring that the failure to enforce a right or provision at one time does not prevent a party from later asserting that right. However, even with a non-waiver provision, a party can still be found to have waived a right if their actions or statements indicate a clear intention to do so.