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]
All case links go to Westlaw and require login.
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).