A waiver of contract occurs when a party to a contract waives or gives up one or more rights or benefits it has under the terms of the contract.

A party generally does not waive its rights unless the waiver is made voluntarily and with knowledge of the rights being waived—known as a “knowing and voluntary relinquishment of rights.”

Contracts often include a non-waiver paragraph or provision stating that a party’s (or the parties’) failure to pursue or exercise certain rights under the contract does not constitute a waiver of those or other rights under the contract. Such non-waiver provisions are common in insurance contracts and other commercial contracts.

In Maine, as in other jurisdictions, a waiver of contract rights must be a knowing and voluntary relinquishment of those rights. This means that the party waiving the rights must do so with full awareness and intention. The waiver can be expressed through clear language in the contract or implied by conduct that indicates an intention to waive the rights. Maine courts will generally uphold waivers that meet these criteria. However, the presence of a non-waiver clause in a contract provides additional protection against unintended waivers. Such clauses specify that the failure to enforce a right or provision does not amount to a waiver of that right or any future rights under the contract. These clauses are enforceable in Maine and help ensure that parties retain their contractual rights unless a waiver is explicitly declared. It's important to note that while non-waiver clauses provide a safeguard, they are not absolute, and a party's consistent behavior contrary to the contract's terms may still be interpreted as a waiver, depending on the circumstances.