Legal Memorandum: Waiver of a Contract Cause of Action in DE

Issue: In Delaware, does a plaintiff waive a contract cause of action against defendant if he or she did not immediately cease performing under an agreement?

Waiver is a voluntary and intentional relinquishment of a known right.  Realty Growth Investors v. Council of Unit Owners, 453 A.2d 450, 456 (Del. 1982); Klein v. American Luggage Works, Inc., 52 Del. 406, 413, 158 A.2d 814, 818 (1960).  It may be made explicitly, as through a writing, or through conduct warranting an inference to that effect.  Klein, 52 Del. at 413, 158 A.2d at 818. 

An injured party may not be barred from recovering unless the breaching party can demonstrate that: 1) the breach was brought to the injured party’s attention, and 2) the injured party deliberately excused it.  Mead v. Collins Realty Co., 45 Del. 508, 512; 75 A.2d 705, 707 (Super. Ct. 1950); Harmony Mill Ltd. Pshp. v. Magness, (Del. Super. Ct. May 1, 1990).  Such waiver requires knowledge of all material facts and one’s rights, and the intent to refrain from enforcing such rights.  Realty Growth Investors, 453 A.2d at 456; Klein, 52 Del. at 413, 158 A.2d at 818.  Facts relied upon to demonstrate waiver must be unequivocal.  Realty Growth Investors, 453 A.2d at 456; Moore v. Travelers Indem. Ins. Co., 408 A.2d 298, 301 (Del. 1979). 

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