Forbearance not a waiver: Overview, definition, and example
What is forbearance not a waiver?
Forbearance not a waiver is a contract clause that clarifies that if one party delays or chooses not to enforce a contractual right—such as collecting a late payment or declaring a default—it does not mean that the party has waived that right. It preserves the enforcing party’s ability to act later, even if they’ve shown leniency in the past.
Why is forbearance not a waiver important?
Without this clause, a party that tolerates a breach or delay could later be accused of waiving its rights. This clause protects the party’s ability to enforce the contract at a future time without being penalized for exercising patience or flexibility. It is especially common in loan agreements, leases, and service contracts where repeated enforcement decisions might otherwise set unintended precedents.
Understanding forbearance not a waiver through an example
A lender agrees not to declare a default when a borrower misses a loan payment but sends a formal notice reserving all rights. Two months later, the borrower misses another payment, and the lender enforces the default terms. If the contract includes a forbearance not a waiver clause, the borrower can’t argue that the lender gave up its right to act simply because it didn’t enforce the terms immediately the first time.
Example of a forbearance not a waiver clause
Here’s how a forbearance not a waiver clause may look like in a contract:
"No failure or delay by either party in exercising any right, power, or remedy under this agreement shall operate as a waiver of such right, power, or remedy, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof."
Conclusion
The forbearance not a waiver clause gives parties room to be flexible without losing their legal rights. It ensures that patience or goodwill isn’t mistaken for a permanent waiver. If your agreement includes obligations that may need to be enforced later, this clause is essential to preserve those rights.
This article contains general legal information and does not contain legal advice. Cobrief is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.