AMI 2436 Defense—Waiver—General Rule

Use this instruction when the defendant alleges the defense of waiver by abandonment of the contract right.

Do not use the bracketed sentence when the case is submitted on interrogatories.

This instruction is based on Bharodia v. Pledger, 340 Ark. 547, 11 S.W.3d 540 (2000) (rejecting waiver claim where contracting party’s alleged waiver of right to terminate the contract was not knowing and intentional), citing Grayson-McLeod Lumber Co. v. Slack Kress Tie & Stave, Co., 102 Ark. 79, 143 S.W. 581 (1912); see also Jet Asphalt & Rock Co. v. Angelo Iafrate Const., LLC, 431 F.3d 613 (8th Cir. 2005) (recognizing long established rule in Arkansas that a “party may waive a breach of a condition set forth in a written contract by permitting the other party to proceed with performance of the contract after discovering the apparent breach”).

In Azzore Veterinary Specialists, LLC v. Hodgson, 2015 Ark. App. 158, 456 S.W.3d 795 (2015), the Court of Appeals reversed the trial court's grant of summary judgment and held that there was a question of fact as to whether the employer had permanently waived its rights when the employer's office manager sent an email to an employee stating: “Since you started so late in the year, we waived the year-end calculation/account balance for 2010.” The claim of a factual question was supported by an affidavit from the office manager stating it was not her intention to permanently deprive the employer of its right but to temporarily refrain from collecting the amount owed, and the parties' employment agreement that provided that the failure to insist on strict compliance would not constitute a waiver.