Waiver clauses

Understanding waiver clauses is essential for practitioners drafting or negotiating commercial contracts. This guidance note explores the legal framework surrounding waiver clauses, clarifying their role in preventing unintentional relinquishment of contractual rights. It distinguishes between boilerplate waiver provisions and substantive waivers requiring detailed scrutiny. Key insights include the legal definition of waiver, practical examples, and critical drafting considerations to ensure enforceability and protection of rights.

Topics Covered

• Defining waiver
• Examples of waiver
• Effect of waiver clauses
• Contents of waiver clauses
• Key drafting considerations

Essential Insights

• Recognise that waiver may be express, implied, or even imputed by courts under complex circumstances.
• Assess how positive conduct can constitute waiver despite explicit clause protections.
• Understand the importance of requiring waivers in writing to avoid informal loss of rights.
• Consider whether waiver clauses should extend to rights under law as well as the agreement.
• Identify how courts interpret waiver clauses differently depending on contract context and parties’ actions.
• Evaluate the risks of relying solely on boilerplate waiver clauses without explicit reservation of critical rights.