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Waiver or Release from Contract

27. What is “waiver” or “release” from a contract?

A waiver and a release serve to excuse one or both parties’ duty of performance.

•    Waiver – When a party intentionally relinquishes a right to enforce the contract. A waiver is generally employed after a party fails to perform.

⁃    Example: Per our contract, I am supposed to paint your house, but I fail to do so in the allotted time. You grant a waiver excusing my liability for failure to perform.

•    Release – When one party is relieved from her promise of performance. A release generally occurs before a contracting party has to perform.

⁃    Example: We sign a contract where you agree to pay me to paint your house by the end of the month. Before my performance is due, I explain that I do not have time to paint your house. You sign a release that frees me of my duty to paint your house.

Waiver and release are often used synonymously to refer to a single document that simultaneously relieves a party from her duty to perform and excuses a non-performance or breach.

•    Discussion: What do you think is the justification for categorizing a release and waiver differently? Should the content of a release agreement be treated differently than the content of a waiver?

•    Practice Question: Pam enters into a contract with Lia to perform consulting services for her business. Pam has a great deal of work and is too busy to perform the contract. She asks Lia to let her out of the contract. What is Pam asking of Lia?

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