The answer is yes and in one of two ways. The first and most straightforward way to waive a contract term by express waiver through a writing to that effect. The second one is more complicated and is fertile ground for a lawsuit to determine whether a waiver has actually occurred. This type is through inference from the actions, conduct or course of dealing of a party or parties after the contract is executed.

As an Atlanta contract disputes attorney with Spaulding Law, we have litigated many cases over the question of whether or not a party has subsequently waived an important term in a contract through its conduct post-execution. Depending on what side you are on, the good news is that in Georgia it takes a wealth of evidence to prove that a party has waived a contractual term through its conduct.

At its core, the case law in Georgia states that ” . . . . all the attendant facts, taken together, must amount to an intentional relinquishment of a known right, in order that a waiver may exist.” In other words, the law is not going to allow an unintentional waiver of a contract term through conduct of party— no gotcha waivers.

The case law explains further that an implied waiver is found when the facts show a party has engaged in conduct showing his election between two inconsistent rights. For example, a party claiming a contract did not exist in court can be shown to have waived such an argument by his earlier conduct whereby he was acting on the theory that the contract was still in force by either continuing to perform, demanding or urging the other party to perform or allowing the other party to perform and accepting or retaining benefits under the contract.

Because proving an implied waiver is so difficult, most claims of such waiver are either tossed out on summary judgment or are tried to a jury who must determine based on the particular facts of the case whether the party’s conduct rises to the level of a showing that he or she intended to waive a known contract term.