Legal Memorandum: Assertion of Rights by an Injured Party in DE

Issue: In Delaware, does an injured party have to assert his or her rights immediately or risk waiver?

No Delaware court has determined that an injured party must immediately assert his rights to avoid the defense of waiver.  On the contrary, "mere delay in taking action is not . . . acquiescence."  Frank v. Wilson, 24 Del. Ch. 237, 246, 9 A.2d 82, 87 (1939).  The effect of delay in enforcing contract rights is seen in Bundesen v. Beck, No. 11347, (Del. Ch. Ct. February 12, 1992), where three real estate partners attempted to extricate themselves from a losing venture.  Eventually they entered into a settlement agreement, under which they could obtain interim financing to cover the monthly debt service for a year while they worked to sell the property.  In January, two partners, Bundesen and Krapf, decided not to seek the interim financing, so the third partner, Beck, began development planning which he believed would bring a higher price for the land.  Id.  By the summer of that year, Bundesen and Krapf had changed their minds and decided that they wanted the interim financing.  Beck asserted that Bundesen and Krapf had waived that right.  Id.  The court held that there was no evidence that Bundesen’s and Krapf’s decision in January not to enforce their right to seek interim financing at that time was a waiver of their right to do so during the full course of the one-year period set out by the agreement.  Id.

Another Delaware court found that continuing to run a franchise business after the franchisor breached its contract was not a waiver by […]