VI. Performance or Breach, E. Waiver of Strict or Full Performance, 1. Overview, § 623 - Right to waive strict or full performance
Strict and full performance of a contract by one party may be waived by the other party, in which case there is, to the extent of the waiver, no right to damages for the failure to perform strictly or fully. This is in accord with the general principle that either party to a contract may waive any of the provisions made for his or her benefit. Moreover, if the parties mutually adopt a mode of performing their contract differing from its strict terms, or, during the course of performance, they mutually relax those terms, neither party may claim that a breach occurred because the contract was not literally fulfilled, and there may be a mutual estoppel, by waiver, as to the effect of a default.
A waiver of the right to enforce one provision of a contract does not automatically waive the right to enforce others; a court will conclude that the right to enforce another provision was waived only where the party intended that consequence. Furthermore, a provision in a contract, stating that the waiver of any of the rights granted in the contract does not constitute a permanent waiver, precludes a waiver from resulting in the loss of contract rights with regard to subsequent performances.
When a party to a contract offers, by word or action, a waiver of certain duties under the contract, other parties who change their position as a result of the waiver may enforce the waiver.
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Caisse Nationale de Credit Agricole v. CBI Industries, Inc., 90 F.3d 1264 (7th Cir. 1996) (applying New York law)
Bratton v. Roadway Package System, Inc., 77 F.3d 168 (7th Cir. 1996) (applying Pennsylvania law)
American Dairy Queen Corp. v. Brown-Port Co., 621 F.2d 255 (7th Cir. 1980)
Saverslak v. Davis-Cleaver Produce Co., 606 F.2d 208 (7th Cir. 1979)
Beverly Bank v. Alsip Bank, 106 Ill. App. 3d 1012, 62 Ill. Dec. 572, 436 N.E.2d 598 (1st Dist. 1982)
White River Conservancy Dist. v. Commonwealth Engineers, Inc., 575 N.E.2d 1011, 16 U.C.C. Rep. Serv. 2d 592 (Ind. Ct. App. 1991)
Johnson v. E. V. Cox Const. Co., 1980 OK CIV APP 30, 620 P.2d 917 (Ct. App. Div. 2 1980)
Hart v. Hoisting and Portable Engineers, 253 Or. 158, 451 P.2d 859 (1969)
First Mortg. Co. of Pennsylvania v. Carter, 306 Pa. Super. 498, 452 A.2d 835 (1982)
Seismic & Digital Concepts, Inc. v. Digital Resources Corp., 590 S.W.2d 718 (Tex. Civ. App. Houston 1st Dist. 1979)
Clear Creek Oil & Gas Co. v. Brunk, 160 Ark. 574, 255 S.W. 7 (1923)
Zinn v. Ex-Cell-O Corp., 148 Cal. App. 2d 56, 306 P.2d 1017 (1st Dist. 1957)
As to a waiver of total breach, see § 680 .
Lerman v. Fruit Processors, 191 F.2d 349 (D.C. Cir. 1951)
Knight v. Kitchin, 237 A.D. 506, 261 N.Y.S. 809 (4th Dep't 1933)
Goodyear Tire and Rubber Co. v. Portilla, 879 S.W.2d 47 (Tex. 1994)
(may unilaterally waive);
Godfrey Co. v. Crawford, 23 Wis. 2d 44, 126 N.W.2d 495 (1964)
Alderman v. Davidson, 326 Or. 508, 954 P.2d 779 (1998)
Bluebonnet Sav. Bank, F.S.B. v. Grayridge Apartment Homes, Inc., 907 S.W.2d 904 (Tex. App. Houston 1st Dist. 1995)
, writ denied, (Mar. 7, 1996).
CosmetiCredit, L.L.C. v. World Fin. Network Natl. Bank, 2014-Ohio-5301, 24 N.E.3d 762
(Ohio Ct. App. 10th Dist. Franklin County 2014).