Am Jur 2d - Contracts § 623

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,[1] in which case there is, to the extent of the waiver, no right to damages for the failure to perform strictly or fully.[2] 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.[3] 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,[4] and there may be a mutual estoppel, by waiver, as to the effect of a default.[5]

A waiver of the right to enforce one provision of a contract does not automatically waive the right to enforce others;[6] a court will conclude that the right to enforce another provision was waived only where the party intended that consequence.[7] 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.[8]

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.[9]

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1   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) .

2   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 .

3   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) .

4   Schuler v. Community First Nat. Bank, 999 P.2d 1303 (Wyo. 2000) .

5   Imperator Realty Co. v. Tull, 228 N.Y. 447, 127 N.E. 263 (1920) ; San Antonio Real Estate Bldg. & Loan Ass'n v. Stewart, 94 Tex. 441, 61 S.W. 386 (1901) .

6   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).

7   Alderman v. Davidson, 326 Or. 508, 954 P.2d 779 (1998) .

8   Hinds v. Titan Wheel Intern., Inc., 45 Fed. Appx. 490 (6th Cir. 2002) .

9   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).

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