A contract is a legally binding document, which clarifies an agreement between two or more parties. It provides details of what the parties agree to perform or exchange, and may be in written or oral form. However, in order to be legally binding, a contract generally must be in writing and signed by all parties involved. Contracts must be entered into by all parties voluntarily. What this means is that all parties signing the contract must do so of their own free will, and must not be under any sort of duress.
Contracts can be utilized in any circumstance in which parties wish to document an agreement, for the purposes of ensuring all parties’ rights are protected. They are considered to be the foundation of the business world.
The term “waiver of contract” refers to the relinquishing (giving up) of contract rights by one party. This can be accomplished either by a positive act or through a deliberate failure to take specific actions. This waiver of contract must be both voluntary and intentional in order to constitute a legal waiver, or release of the contract rights.
An example of this would be if the recipient of goods turns away the delivery person, or rejects the goods being delivered. This could constitute a waiver of contract. Alternatively, the recipient may expressly waive their contract rights by sending the other party a written message regarding the goods. However, if the party accidentally refused the goods, it might not be considered a waiver. This would be because they did not act voluntarily and intentionally.
A release or release clause is an agreement between parties which states that one of the parties will forfeit their rights to a legal claim. This clause generally states that the releasing party is relinquishing or forfeiting their right to sue or bring a lawsuit against the other party. Releases may be signed as a separate agreement, or they may be included as its own provision in the contract. Signing a release can severely limit legal remedies should any disputes arise, so it should be taken very seriously.
Although release clauses and waiver of contract are very similar, there are some differences between the two. The biggest of these differences is that when rights are released, those rights are then transferred to another party. Whereas when rights are waived, those rights cease to exist entirely.
What Types of Contract Rights Can Be Waived?
What types of contract rights can be waived depends on the types of rights listed in the contract itself. What this means is that waivers will vary according to the needs of each individual contract. Generally speaking, some examples of waiver of contract may involve forfeiting the rights to:
- Receive payment for a product, or for services;
- Have a product delivered at a set time;
- Have exclusive rights to use or access copyrighted or protected material; and
- Have exclusive rights to sell or purchase the goods.
When considering a waiver of contract, it is important to also consider the laws regarding the assignment or delegation of contractual duties to a third party. Assignment refers to the transfer of rights to another party. An example of this would be if a contract entitles you to receive $100 for painting a house. You could transfer the right to receive that $100 to another person.
On the other hand, delegating duties refers to transferring the obligations of a contract. To put it simply, the contract requires you to perform some duty, and you want someone else to perform that duty instead of you. In the example used above, instead of transferring your right to receive $100, you would transfer the obligation to paint the house to someone else.
Not all contract rights can be waived through a transfer of the duties to another party. And, consent to assignment or delegation is not required unless stated by the contract. Because of this, it is important to carefully read the contract in question to determine any exceptions.
Can One Party’s Silence Be Considered a Waiver?
Generally speaking, no, one contract party’s silence would not constitute a waiver of contract. As previously discussed, the waiver must occur in such a way that indicates a voluntary and intentional decision.
Mere silence on a matter is generally not enough to be considered a waiver of contract. The waiving party must actually take steps in order to give up their contractual rights for the court to find that a waiver existed.
What Do I Need to Know About Contract Attorneys?
A business contract lawyer specializes in providing legal assistance and advice regarding business contracts. Business contract attorneys most commonly draft, review, and negotiate business agreements for their clients. While all attorneys have approximate knowledge of contract law, contract attorneys may be specially educated or experienced in specific areas of law and business.
They have practical knowledge regarding:
- Contracts and contract requirements, or, what makes a contract legally enforceable;
- State and municipal laws which govern the area in which they practice;
- Sales agreement contract review;
- Intellectual property contracts, which usually involve the complex matter of licensing intellectual property;
- Tax contracts, such as property tax, international tax, and corporate taxes;
- Employment contracts;
- Affiliate agreements; and
- Subscription agreements.
The general duties and responsibilities of a contract lawyer include, but are not limited to:
- Drafting contracts that are legally sound and enforceable;
- Reviewing contracts to ensure that their clients’ rights are protected;
- Enforcing and protecting those rights in court as needed, should any legal disputes arise; and
- Including certain legal elements and language as required by each specific type of contract.
Both businesses and individuals utilize the services of a contract lawyer. Contract attorney rates vary based on the experience of the attorney, as well as the facts of the case and how much extensive legal work will go into resolving the case. There may be differing fees for differing parts of the process. An example of this would be how drafting a contract may cost less in attorney’s fees than the negotiation process. A breach of contract case could cost something else entirely.
Other factors that may affect the cost of attorney’s fees include:
- The attorney’s hourly fee;
- Whether the attorney utilizes and hourly fee structure, or a flat fee structure;
- The number of hours the attorney spends working on the case;
- The amount of filing fees, which is set by the local court system; and
- Whether the case goes to trial or is settled outside of court.
Many contracts will include a clause which details how disputes are to be resolved, and how attorney’s fees are to be handled. Some contracts limit conflict resolution to alternative means, such as mediation, and will not allow for litigation in court.
Do I Need a Lawyer for Help With a Waiver of Contract?
Because contract and business laws vary from state to state, you may wish to consult with an attorney to provide clarity regarding the terms of your contract. If you are experiencing any issues with your contract, such as a waiver of contract, you should consult with a skilled and knowledgeable contract lawyer in your area.
An experienced local contract attorney will help you determine exactly what your contractual duties and legal rights are, and how to move forward according to those rights and duties. Additionally, should you need to file a civil lawsuit, your attorney can help you determine whether your contract allows for that, and will assist in obtaining the proper remedy for your case as needed. Finally, an attorney can also represent you in court, as needed.