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 West Virginia, a waiver of contract rights occurs when a party intentionally relinquishes a known right or conducts itself in a manner that justifies an inference of the relinquishment of such right. This is consistent with the general principle that waivers must be knowing and voluntary. West Virginia courts will typically look for clear and unambiguous evidence of a waiver. The presence of a non-waiver clause in a contract is recognized and enforced by West Virginia courts. These clauses stipulate that the failure to enforce a right or provision does not amount to a waiver of that right or any future rights. Such clauses help to prevent inadvertent waivers of contractual rights and are particularly prevalent in insurance and commercial contracts. However, even with a non-waiver clause, a party can still intentionally and explicitly waive its contractual rights if it chooses to do so.