§ 19-22 Contract - Waiver

• Library: South Carolina Requests to Charge - Civil (SCBar) (2016 Ed.)

§ 19-22 Contract - Waiver

The defendant claims that, even if there was a breach of contract, the plaintiff, by his actions after the alleged breach, waived his right to enforce the contract.

Waiver involves the intentional relinquishment of a known right. That is, waiver is a voluntary and intentional abandonment or relinquishment of a known right. It may be implied from circumstances indicating an intent to waive. An implied waiver results from acts and conduct of the party against whom the doctrine is invoked from which an intentional relinquishment of a right is reasonably inferable. Acts that are inconsistent with the continued assertion of a right may also give rise to a waiver.

Waiver is an affirmative defense. The burden of proof is upon the party who asserts it. Generally, the party claiming waiver must show that the party against whom waiver is asserted possessed, at the time, actual or constructive knowledge of his rights or of all the material facts upon which they depended.

Strict and full performance of a contract by one party may be waived by the other party, in which case there is, to the extent of the waiver, no right to damages for the failure to perform strictly or fully. Either party to a contract may waive any of the provisions made for his benefit.

An unexplained delay in enforcing a contract may constitute evidence of waiver and acquiescence in nonperformance. Waiver of a contractual right is largely a matter of intent.

The right to prosecute a breach of contract action may be waived if the party which has the right acts in such a manner as to lead the other side to believe that the right has been relinquished. In other words, once a breach of contract occurs, the non-breaching party must enforce his rights or lose them.

A default in the performance of a contract may be waived. Although intent is necessary to effect a waiver of a breach of contract, it need not be shown by direct evidence. The waiver of a breach of contract may be shown by an act which is so inconsistent with an intent to enforce the right which arises upon the breach as reasonably to induce a belief that the right has been relinquished.

If you find the defendant has proved the plaintiff acted in such a way as to waive his rights to enforce the breach of contract, then your verdict must be for the defendant on this issue.

See Parker v. Parker, 313 S.C. 482, 443 S.E.2d 388

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