Case Nos: CL-2023-000206 and CL-2023-000207 - [2025] EWHC 1591 (Comm)

Fecha: 26-Jun-2025

Waiver

Waiver

45.

The Defendants sought to rely in the alternative on there having been a waiver in the sense of a forbearance. There was no dispute between the parties as to following summary of the doctrine which appears in Chitty on Contracts (35^th ed.) [26-043] and [26-045]:

[26-043] Where one party voluntarily accedes to a request by the other that he should forbear to insist on the mode of performance fixed by the contract, the court may hold that he has waived his right to require that the contract be performed in this respect according to its original tenor. Waiver (in the sense of “waiver by estoppel” rather than “waiver by election”) may also be held to have occurred if, without any request, one party represents to the other that he will forbear to enforce or rely on a term of the contract to be performed or observed by the other party, and the other party acts in reliance on that representation.
[26-045] The party who forbears will be bound by the waiver and cannot set up the original terms of the agreement. If, by words or conduct, he has agreed or led the other party to believe that he will accept performance at a later date than or in a different manner from that provided in the contract, he will not be able to refuse that performance when tendered and, if the varied performance is made and accepted, damages cannot be claimed on the ground that performance did not take place in accordance with the terms of the original agreement.

46.

At [26-047] Chitty adds:

[26-047] A waiver is also distinguishable from a variation of a contract in that there is no consideration for the forbearance moving from the party to whom it is given. It may therefore be more satisfactory to regard this form of waiver, that is ‘waiver by estoppel’, as analogous to, or even identical with, equitable forbearance or ‘promissory’ estoppel. Although consideration need not be proved, certain other requirements must be satisfied for such an estoppel to be effective: first, it must be clear and unequivocal; secondly, the other party must have altered his position in reliance on it, or at least acted on it.