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 West Virginia, a waiver of contract is recognized when a party intentionally relinquishes a known right or conducts itself in such a manner that would indicate the abandonment of a right, benefit, or advantage provided by a contract. The waiver must be voluntary and made with an understanding of the rights being waived. This is consistent with the general principle that waivers must be knowing and voluntary. Non-waiver clauses are often included in contracts to clarify that the failure to enforce a right or provision does not imply that a party has waived that right or any future rights. These clauses help to prevent any unintended waivers of rights, especially in situations where a party may overlook or delay enforcing a right or benefit under the contract. Such provisions are particularly common in insurance and commercial contracts to ensure that the contractual rights are preserved unless an explicit and intentional waiver is made. West Virginia courts will generally enforce these non-waiver provisions as long as they are clearly stated within the contract and do not contravene public policy.