Waiver: Definition, Types, Purpose
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What Is a Waiver?
The word "waiver" means to forgo an interest or right by intentionally or unintentionally choosing to give up the opportunity to enforce it. Simply put, waiving something means not enforcing it. Therefore, a waiver clause in a contract is a clause that governs the way a contractual party can waive a right and the consequences of the waiver.
To a certain extent, most contracts have a waiver clause. It's important to clearly understand a wavier clause because it specifies the circumstances in which a contractual provision becomes enforceable and the specific actions that may lead to a forfeiture of your rights.
How a Waiver Clause Works
To gain a clearer understanding of a waiver clause, let's take a look at an example. Suppose you're a service provider who has entered into a contract with a customer to provide ongoing services on a monthly basis. The contract states that you should receive payment by the first day of each month, and you're entitled to charge a penalty for late payment.
Your client manages to pay on time for the first five months but pays three days late on the sixth month. You decide not to charge the late fee because you have a good relationship with the customer, or maybe you've been so busy that you didn't even realize the payment was late.
By choosing not to impose a penalty, you're essentially waiving your right to charge the late fee on this particular occasion. However, this decision may have an impact on your rights in the future. Take the following questions into consideration:
- Can you still enforce the late fee if you change your mind several months after the due date?
- What does your failure to impose the penalty mean in the future if the same customer pays late again?
- Does your decision to waive the late fee affect other terms of your contract?
The answers to these questions depend on whether you've included a waiver clause in your contract and what kind of waiver clause you have.
What Is the Purpose of a Waiver Clause?
In general, the law states that a right that hasn't been regularly enforced is a right that a court won't enforce selectively. Usually, parties of a contract will both benefit in the long term if they have a good understanding of what they are and aren't allowed to do under the agreement.
If you're the party who can enforce a right, you should include a waiver clause to ensure that you won't unintentionally lose your ability to do so in the future. Conversely, if your contractual partner is entitled to enforce a right against you, having a waiver clause clarifies whether you're expected to strictly abide by the terms of the contract.
The example above relates to a somewhat minor waiver of a late payment penalty. Nonetheless, in some cases, a waived right can be a more important right, such as the right of the non-breaching party to end the contract. Although the discussion of a waiver usually seems to be something that isn't likely to be significant, bear in mind that the specific language of the waiver clause may significantly affect your rights.
What Are the Different Types of Waiver Clauses?
If you want to make sure your rights will remain enforceable, you need to understand the different kinds of waiver clauses and the obligations they create. Here are several types of waivers commonly seen in contracts:
- Affirmative waiver: In an affirmative waiver, your neglect or failure to enforce your rights won't be considered a waiver of your rights. This means that you must expressly let the other party know that you're waiving your right to make the waiver effective.
- General waiver prohibition: This type of waiver clause builds on the affirmative waiver. You not only have to expressly inform the other party that you're waiving a right in order to enforce it, but you should also state that the waiver of one right won't automatically result in the waiver of your other rights. In other words, you need to have a separate expressed statement for every right you intend to waive.
- Written waiver: Under this agreement, a waiver or extension is valid only if the party who grants it writes it down and signs it. If the waiver isn't written and signed, you won't be able to enforce your rights.
- Course of dealing waiver: With this kind of waiver, you're able to exercise a right with the same party even if you had partially or fully waived that right before. This is the case regardless of whether you enforce the right while you're under the same contract or a subsequent one as you continue to have a relationship with the other party. Keep in mind that this waiver clause doesn't specify how you can or can't waive the "first" right. Instead, it only focuses on the fact that the waiver of that first right doesn't waive other rights.
- Complete non-waiver: The complete non-waiver clause is a combination of the affirmative waiver, the general waiver prohibition, and the course of dealing waiver. It isn't uncommon for waiver clauses to incorporate more than one type of waiver, such as this one.
How to Determine the Right Waiver Clause for Your Contract
Your choice of waiver clause depends on your contract and situation. It's usually best to use a clause that includes multiple types of waivers, but it may not be necessary for you to do so.
While they may seem inconsequential to some people, waivers can help you retain your ability to enforce your rights. To choose the right waiver clauses for your contract, you have to make sure that you have a good understanding of your agreement and the reasons you're using any particular clause. Here's an article about understanding a legal contract .
Are Waivers Always Enforceable?
No, waiver clauses aren't always enforceable. Even if you have a complete non-waiver clause in your contract, a court may find that you waived your right to enforcement if you demonstrated extreme behavior. For instance, you may have taken actions in bad faith or delayed enforcement for a long time, such as years or decades. Therefore, including a non-waiver provision is only the first step toward protecting your rights in a contract. Learn more about your contractual rights in this article.
Image via Flickr by 24oranges.nl
Best Practices for Incorporating Waiver Clauses
Once you're able to use waiver clauses effectively, you'll have more options available if the other party breaches a contract. Use the tips below to take full advantage of waivers:
- Know beforehand what kinds of waiver clauses are included in your contract and how they affect you.
- In the event of a breach of contract , you have to immediately decide whether you want to waive your rights or enforce them.
- As the non-breaching party, you should put your intention in writing and send it to the other party. You may intend to waive, reserve your right to waive, or end the contract.
- If you choose to reserve your right to waive, make sure you ask the breaching party to sign a document acknowledging that your decision doesn't constitute a waiver.
If you want to know more about waiver clauses in contracts, contact us today to speak with the friendly and helpful experts at ContractsCounsel.
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Allen L.
Allen L.
Protect what matters most — with clarity, care, and flat-rate planning. Protecting your family and your future shouldn’t feel confusing or overwhelming. My practice is built on the idea that strong legal planning can be simple, strategic, and empowering. I work with clients who want peace of mind — not just paperwork — through estate plans that truly fit their goals, families, and businesses. I focus on estate planning, asset protection, and business succession, helping individuals and entrepreneurs organize their assets, reduce risk, and prepare for every stage of life. Whether you’re setting up your first living trust, shielding your business from liability, or updating an existing estate plan, you’ll receive clear guidance, fixed-fee pricing, and responsive support from start to finish. Each plan I design is tailored to your real-world priorities: preserving wealth, avoiding unnecessary taxes and probate, and ensuring the people you love are protected when it matters most. My goal is simple — to make sure everything you’ve built stays safe, secure, and exactly where you intend it to go. Other services: --Simple wills and powers of attorney --Living trusts for small estates --Buy-sell agreements for family businesses --Service Agreements (consulting, marketing, software, design, etc.) --Independent Contractor Agreements --Employment contracts and offer letters --Non-compete, non-solicitation, or confidentiality agreements --Employee handbooks or HR policy updates --Termination or severance agreements --NDAs (Non-Disclosure Agreements) --Partnership or Joint Venture Agreements --Sales or Vendor Contracts --Licensing or IP Agreements --LLC or S-Corp formation filings --Operating Agreements / Shareholder Agreements --Founder or Investor Agreements --Bylaws and Minutes templates --Registered agent setup guidance --Commercial lease drafting or review --Residential lease review --Purchase & sale agreements --Short-term rental (Airbnb) contracts --Property management agreements
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Michael B.
Michael has extensive experience advising companies from start-ups to established publicly-traded companies . He has represented businesses in a wide array of fields IT consulting, software solutions, web design/ development, financial services, SaaS, data storage, and others. Areas of expertise include contract drafting and negotiation, terms of use, business structuring and funding, company and employee policies, general transactional issues as well as licensing and regulatory compliance. His prior experience before entering private practice includes negotiating sales contracts for a Fortune 500 healthcare company, as well as regulatory compliance contracts for a publicly traded dental manufacturer. Mr. Brennan firmly believes that every business deserves a lawyer that is both responsive and dependable, and he strives to provide that type of service to every client.
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Zachary J.
I am a solo-practitioner with a practice mostly consisting of serving as a fractional general counsel to growth stage companies. With a practical business background, I aim to bring real-world, economically driven solutions to my client's legal problems and pride myself on efficient yet effective work.
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Bruce Burk practice is in the area of small business, labor and employment, contracts, real estate and civil litigation. Bruce has litigated over 40 trials as well as many appeals. He prioritizes client communication and satisfaction as well as delivering high quality work product.
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Attorney Cory Barack specializes in business, real estate, probate, and energy law. He can help you with oil/gas leases, easements, property sales, drafting contracts and wills, setting up companies, and resolving disputes. He is licensed to practice law in Ohio and is located in Eastern Ohio.
Daehoon P.
Daehoon P.
Corporate, M&A & Securities Lawyer | Managing Attorney, DP Counsel PLLC Practice Areas: Business Formation | Commercial Contracts | Contract Drafting & Review | Mergers & Acquisitions | Venture Capital | Securities Offerings | Franchise Law | Employment & Equity Compensation | Intellectual Property | Cross-Border Transactions About/Bio: I represent companies, investors, and fund sponsors in corporate transactions, commercial contracting, and private securities matters, from entity formation and early-stage financings to acquisitions, exits, and ongoing strategic counsel. As Managing Attorney of DP Counsel PLLC, I help clients structure transactions clearly, allocate risk thoughtfully, and move deals forward with documentation that is practical, enforceable, and aligned with business objectives. My practice includes both day-to-day commercial matters and more complex transactional work, including venture financings, private offerings, M&A deals, fund-related documents, and cross-border structuring. What I Do: Corporate & Commercial • Entity formation and structuring for corporations, LLCs, and limited partnerships • Operating agreements, shareholder agreements, and governance documents • Commercial contract drafting, review, and negotiation • Vendor, distribution, manufacturing, SaaS, and licensing agreements • Employment, consulting, confidentiality, and equity compensation agreements • Outside general counsel support for growing companies Securities & Private Capital • Private offerings under Regulation D and Regulation S • Private placement memoranda, subscription agreements, and investor documents • SAFE, convertible note, and priced equity financings • Venture capital and private fund formation matters • Fund governing documents and offering document packages • Securities law analysis for private capital raising transactions Mergers & Acquisitions • Letters of intent and term sheets • Stock purchase, asset purchase, and merger agreements • Due diligence coordination and transaction support • Disclosure schedules, closing documents, and post-closing matters • Earnouts, rollover equity, indemnity structures, and related deal terms • HSR, CFIUS, and related regulatory issue spotting for qualifying transactions Digital Assets & Emerging Technologies • Federal-law digital asset and token securities analysis • Entity structuring for blockchain and Web3 ventures • Digital asset fund and operating structures • AML/KYC documentation support and regulatory issue spotting Franchising • Franchise Disclosure Documents (FDDs) • Franchise agreements • Master franchise and area development agreements • Franchise structuring and registration coordination Real Estate Transactions • Commercial real estate acquisitions and dispositions • Real estate joint ventures and syndications • Commercial lease drafting and negotiation • Real estate investment structures and related offering documents Cross-Border & International • U.S. market entry and entity structuring for international clients • Delaware and multi-entity holding structures • Cross-border transaction planning and documentation • Coordination with foreign counsel and tax advisors on cross-border matters Why Clients Hire Me: • Big-law-level drafting with boutique responsiveness • Practical, business-focused advice grounded in execution reality • Clear scoping and transparent fee arrangements • Experience across financings, acquisitions, fund formations, and cross-border transactions Typical Projects: • Contract drafting and negotiation • Entity formation and governance packages • Private offering document suites • Venture financing documentation • M&A transactions from LOI through closing • Fractional or outside general counsel support Industries Technology | SaaS | FinTech | Digital Assets | E-commerce | Healthcare | Real Estate | Food & Beverage | Professional Services
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A commercial contracts lawyer with over 25 years of experience (both at large law firms and in-house as general counsel of a public company)
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Business Contracts
Waiver
New Jersey
Should I have my gym members sign a separate liability waiver or is it fine to put language in my membership agreement?
I run in gym in New Jersey and currently have a clause in my membership agreement that covers our liability. I want to understand if that is enough or if I should have a separate document for my members to sign.
Jane C.
Yes. If worded correctly, a liability waiver is effective. Note that a few states do not allow liability waivers and others have strict requirements for their enforceability. Disclaimer - This information is provided for general informational purposes only. No information contained in this post should be construed as legal advice and does not establish an attorney-client relationship.
Contracts
Waiver
Washington
Can a waiver signed by a participant in a recreational activity protect the activity organizer from liability for injuries caused by their negligence?
I recently participated in a recreational activity organized by a local company, and before participating, I was required to sign a waiver releasing the company from any liability for injuries. During the activity, I sustained a serious injury due to the organizer's negligence in maintaining the equipment. I am now wondering if the waiver I signed is legally enforceable and if it can absolve the company from responsibility for their negligence, or if I still have grounds to seek compensation for my injuries.
Merry K.
I am very sorry to hear about your injuries, and wish you a speedy and quick recovery. Many attorneys who practice full-time in personal injury law (I'm not one of them) can overcome a release and waiver. Moreover, it's often possible to go after more than just the company in this type of circumstance - there's the company, but there's also the Board, there are individual employees, and there is the manufacturer of any equipment uses (this would be a products liability matter). In Washington, you have at least a year to sue for personal injury. I recommend that you talk with at least three personal injury attorneys. They will want you to have a time line of the event and all the medical treatment you received, and will want to see all your medical records. You don't need someone in your county - it can be anyone licensed in WA State.
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