(e) Waivers

Most modern laws provide that the failure of a party to claim or enforce its rights does not automatically qualify as a waiver of such rights. Also, if a party does ‘waive’ its rights in a certain situation, EU Member State laws will not easily presume a blanket waiver. Despite the compulsory nature of that principle and the great reluctance of courts to assume a waiver, many contract drafters still include wording that reflects the law, resulting in something less sophisticated than the law that will apply anyhow. Such inferior wording might be:

Franchisor and Franchisee may by written instrument unilaterally waive or reduce any obligation of the other under this Agreement.  Any waiver granted by Franchisor shall be without prejudice to any other rights Franchisor may have and shall be subject to continuing review by Franchisor.

In certain cases, a waiver provision is useful and more adapted to the way things work in real life. For example, if it is more specific in scope or effects:

Waivers. A failure of a Party to enforce strictly a provision of this Agreement shall in no event be considered a waiver of any part of such provision. No waiver by a Party of any breach or default by the other Party shall operate as a waiver of any succeeding breach or other default or breach by such other Party. No waiver shall have any effect unless it is specific, irrevocable and in writing.

This above clause specifies what may or may not be the consequence of a party’s behaviour or (informal) remarks.