WPI 302.07 Excuse of Performance—Waiver

Use this instruction when a party has asserted waiver in excuse of performance and there is a sufficient evidentiary basis for taking the issue to the jury. Insert an appropriate provision in WPI 300.03 (Burden of Proof on the Issues—Breach of Contract—With Affirmative Defenses) when waiver is asserted as an affirmative defense. Modify the instruction if the condition allegedly waived is an event or occurrence rather than a performance by the party asserting waiver.

Use this instruction with WPI 21.01 (Meaning of Burden of Proof—Preponderance of the Evidence).

If the circumstances warrant, use the bracketed paragraph to explain the requirements for implied waivers. See the Comment below.

It may also be appropriate to add language regarding the effect of a contractual limit on the terms of a waiver or a contractual non-waiver clause. See the Comment below.

Waiver agreements. A decision to relinquish a known right under the terms of a contract constitutes a waiver, excusing the other party's obligation to perform according to the relevant contract terms. Sherman v. Lunsford, 44 Wn.App. 858, 862–63, 723 P.2d 1176 (1986). A party against whom waiver is claimed must have intended to relinquish the right, advantage, or benefit and the party's action must have been inconsistent with any intent other than to waive it. City of Puyallup v. Hogan, 168 Wn.App. 406, 277 P.3d 49 (2012) (lease did not manifest unequivocal intent to waive right to share in condemnation award); Wagner v. Wagner, 95 Wn.2d 94, 102, 621 P.2d 1279 (1980).

Waiver and estoppel distinguished. Waiver and estoppel are frequently asserted together, and the facts may give rise to both. Schuster v. Prestige Senior Mgmt., L.L.C., 193 Wn.App. 616, 376 P.3d 412 (2016) (trial court properly denied motion to compel arbitration where defendant waived procedural right). However, the distinction between them should be made clear. Waiver does not require reliance or consideration, and may arise unilaterally. Cornerstone Equip. Leasing, Inc. v. MacLeod, 159 Wn.App. 899, 247 P.3d 790 (2011). The proof required is only a preponderance of the evidence. Estoppel, on the other hand, requires reasonable reliance on a statement or conduct inconsistent with a claim later asserted. Tupper v. Tupper, 15 Wn.App.2d 796, 812, 478 P.3d 1132 (2020). It requires proof by clear, cogent and convincing evidence. Tupper, 15 Wn.App.2d at 812 (quoting Berschauer/Phillips Constr. Co. v. Seattle Sch. Dist. No. 1, 124 Wn.2d 816, 831, 881 P.2d 986 (1994)).

Unilateral waivers. According to the Washington cases, a waiver may be unilateral and without consideration so long as the right waived was known and existed at the time of the knowing waiver. Sherman, 44 Wn.App. at 862–63 (citing Panorama Residential Protective Ass'n v. Panorama Corp. of Wash., 97 Wn.2d 23, 28–29, 640 P.2d 1057 (1982)); see also Gorge Lumber Co. v. Brazier Lumber Co., 6 Wn.App. 327, 335, 493 P.2d 782 (1972) (“As a waiver in Washington is unilateral …, there can be a waiver without consideration as well.”). A party to a contract may waive any contract provision that is made for its benefit. Mike M. Johnson, Inc., v. Cnty. of Spokane, 150 Wn.2d 375, 386, 78 P.3d 161 (2003).

Burden of proof. Waiver is an affirmative defense; the party asserting the defense has the burden of proof. See Comment, WPI 300.03 (Burden of Proof on the Issues—Breach of Contract—With Affirmative Defenses); CR 8(c).

Implied waiver. A waiver may be express, or may be inferred from circumstances indicating an intent to waive. In re Estate of Petelle, 195 Wn.2d 661, 462 P.3d 848 (2020) (waiver language in marital dissolution agreement was enforceable); Mike M. Johnson, 150 Wn.2d at 386; Singer Credit Corp. v. Mercer Island Masonry, Inc., 13 Wn.App. 877, 884, 538 P.2d 544 (1975). Nevertheless, “to constitute a waiver, other than by express agreement, there must be unequivocal acts or conduct evincing an intent to waive … Intent cannot be inferred from doubtful or ambiguous factors.” Wagner, 95 Wn.2d at 102 (citations omitted); see also Mike M. Johnson, 150 Wn.2d at 386. “Mere silence does not constitute a waiver unless there is an obligation to speak.” Voelker v. Joseph, 62 Wn.2d 429, 435, 383 P.2d 301 (1963).

Courts disfavor implied waivers of contractual rights to arbitration, so that the party seeking waiver of these rights bears a “heavy” burden of proof. See Brundridge v. Fluor Fed. Servs., Inc., 109 Wn.App. 347, 356, 35 P.3d 389 (2001); Steele v. Lundgren, 85 Wn.App. 845, 852, 935 P.2d 671 (1997) (also citing several federal cases involving contractual rights to arbitration). In one case, the Court of Appeals stated this principle more broadly, holding that the heavy burden of proof applies to the implied waiver of contractual rights generally. Oregon Mut. Ins. Co. v. Barton, 109 Wn.App. 405, 418, 36 P.3d 1065 (2001) (at issue was an implied waiver of the right to enforce a settlement).

Distinctions among waivers. Some commentators have distinguished among three types of waivers:

Though the cited Washington cases seem to fall within the exceptions to the requirement of consideration for waiver of condition in an executory contract, they do not explicitly distinguish among these applications of the rule.

Nonwaiver clauses. While a nonwaiver clause in the underlying contract may in certain circumstances operate to prevent a waiver, see First Union Management, Inc. v. Slack, 36 Wn.App. 849, 679 P.2d 936 (1984) (clause prevented acceptance of rent from constituting waiver of nonmonetary breaches), courts have strictly construed such clauses in insurance contracts:

Weber v. Biddle, 4 Wn.App. 519, 524, 483 P.2d 155 (1971).

Treatise. For further discussion of the issues underlying this instruction, see DeWolf, Allen, & Caruso, 25 Washington Practice, Contract Law and Practice § 10:11 (3rd ed.).