Waiver Clause in UK Contracts: What It Means & Example Wording
A waiver clause (often called a 'no waiver' clause) provides that a party's failure to exercise or delay in exercising a right under the contract does not constitute a waiver of that right. Without this clause, a party that consistently overlooks a breach by the other side might be found to have waived the right to enforce the relevant obligation. The clause preserves all contractual rights regardless of past conduct.
Last updated: February 2025
When to Include a Waiver Clause
- In every contract as standard boilerplate — it protects both parties from inadvertently losing their rights through inaction
- In long-term contracts where a party might tolerate occasional minor breaches without wanting to forfeit the right to enforce the clause in the future
- In franchise and licensing agreements where the franchisor or licensor may not enforce every minor non-compliance immediately
Example Wording
This example wording is illustrative only. Customise it to your specific circumstances and consider seeking legal advice.
Is a Waiver Clause Enforceable in the UK?
No-waiver clauses are generally enforceable in the UK. However, they are not absolute. In extreme cases, a course of conduct over time may give rise to an estoppel, waiver by election, or variation by conduct that overrides the no-waiver clause. The Rock Advertising v MWB [2018] Supreme Court decision on NOM clauses suggested that contractual anti-avoidance provisions are generally effective, but estoppel remains a potential override. Practical enforceability depends on the specific facts and the parties' conduct.
Common Mistakes
- Assuming a no-waiver clause provides absolute protection — prolonged and consistent failure to enforce a right may still give rise to an estoppel or waiver by election despite the clause
- Not requiring waivers to be in writing — without this, a verbal statement of waiver could create confusion
- Confusing waiver with variation — a waiver temporarily excuses a breach without changing the contract, whereas a variation permanently changes the terms
FAQ
Can I lose my rights under a contract by not enforcing them?
Yes, potentially. Under the doctrines of waiver by election and estoppel, if you consistently fail to enforce a contractual right and the other party reasonably relies on your inaction, a court may find that you have waived that right. A no-waiver clause reduces this risk but may not eliminate it entirely.
Does a no-waiver clause need to be mutual?
It does not need to be, but it usually is. Most no-waiver clauses are drafted to apply to both parties equally. A one-sided waiver clause (protecting only one party) is valid but may be scrutinised more closely in the context of unfair terms legislation.
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