Legal Question in Civil Litigation in California

Hello,

I have a fairly easy question regarding legal terminology. I'm trying to find the term or phrase for the situation when a person does not enforce certain stipulations of a contract he entered, and therefore negates his future ability to sue for breach of that stipulation.

The easiest example I can think of is rent (this is a transportation law issue, but I think this analogy is appropriate); if a lease agreement states that rent is due on the 5th, yet a landlord consistently allows rent to be paid on the 10th with no penalty, he loses his ability to enforce (evict, collect fees) the stipulation.

As I understand it, unless there is language to the contrary, our mutual disregard of this stipulation is a tacit modification of the terms of the contract. I simply need the appropriate legal phrase that summarizes these three paragraphs. Thank you!


Asked on 9/09/11, 9:01 am

3 Answers from Attorneys
Robert F. Cohen Law Office of Robert F. Cohen

Waiver is implied because of the party's consistent conduct in contradiction to the express terms of the agreement. See, e.g. http://law.yourdictionary.com/waiver.

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Answered on 9/09/11, 9:30 am

Waiver is probably right, but depending on the facts it could be an estoppel. An estoppel is similar to a waiver, but where the conduct of one party induces a change in the conduct of the other party in a way that would disadvantage the second party if the first party then attempted to enforce the original terms.

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Answered on 9/14/11, 1:03 pm


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