M Civ JI 142.41 Waiver

[ Name of party being sued on contract ] claims that [ his / her / its ] failure to execute the promise was excused because [ name of party ] waived [ his / her / its ] performance. To excuse nonperformance, [ name of party being sued on contract ] must prove that [ name of party ] voluntarily and knowingly gave up [ his / her / its ] right to insist on performance of [ insert performance obligation ]. In other words, [ name of party ] must have known that [ he / she / it ] had the right to insist on the completion of [ insert performance obligation ] by [ name of party being sued on contract ], but nevertheless agreed to give up this right. A waiver may be expressly stated or it may be implied by acts or conduct, indicating an intent not to enforce the contractual right such that a reasonable person would think that performance was no longer required. A waiver of a substantial right requires consideration.

Comment

Fitzgerald v Hubert Herman, Inc, 23 Mich App 716 (1970); Babcock v Public Bank, 366 Mich 124 (1962).

History

M Civ JI 142.41 was added March 2005.