Waiver clauses in contracts

In many contracts, a provision is inserted saying that a party may waive its rights provided it is specific and in writing. In European legal systems, such clause is unnecessary: vast case law provides that a waiver of rights must be clear and unequivocal, expressed by a person authorised to represent the waiving party. In this blog I discuss a useful way of providing for waiver provision in the miscellaneous article.

Most European member state laws provide that the failure of a party to claim or enforce its rights does not automatically qualify as a waiver of such rights. Also, if a party does ‘waive’ its rights in a certain situation, member state laws will not easily presume a blanket waiver. Still, despite the compulsory nature of that principle and the great reluctance of courts to assume a waiver, many contract drafters provide for wording that reflect the law, resulting in something

Franchisor and Franchisee may by written instrument unilaterally waive or reduce any obligation of the other under this Agreement.  Any waiver granted by Franchisor shall be without prejudice to any other rights Franchisor may have and shall be subject to continuing review by Franchisor.

In certain cases, a waiver provision is useful and more adapted to the way it works in real life. For example, if it is more specific as regards its scope or effects:

Waivers. A failure of a Party to enforce strictly a provision of this Agreement shall in no event be considered a waiver of any part of such provision. No waiver by a Party of any breach or default by the other Party shall operate as a waiver of any succeeding breach or other default or breach by such other Party. No waiver shall have any effect unless it is specific, irrevocable and in writing.

The above clause specifies what may or may not be the consequence of a party’s behaviour or (informal) remarks.

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