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 Wisconsin, a waiver of contract rights must be made knowingly and voluntarily, which means the party waiving the rights must do so with full awareness and intention. This principle is consistent with general contract law, which requires that any relinquishment of contractual rights or benefits be done with informed consent. Wisconsin courts will typically look for clear evidence of intent to waive rights, and such waivers are not presumed lightly. Non-waiver clauses are commonly included in contracts to clarify that the failure to enforce a right or provision does not amount to a waiver of that right or any future rights. These clauses help to protect parties from inadvertently losing their rights through inaction or forbearance. In the context of insurance and commercial contracts, these provisions are particularly important as they maintain the contract's integrity and the parties' expectations. It's important to note that while non-waiver clauses are enforceable, the specific circumstances and actions of the parties can sometimes override these provisions, especially if the conduct of the waiving party unequivocally indicates an intention to waive a right.