A breach of contract is a failure to perform the contract in the manner called for by the contract. A party is entitled to contractual remedies if the other party breaches a contract. A breach does not always result in a lawsuit or mean the end of a contract. One party may be willing to waive or ignore the breach. A waiver can be made by words or by conduct. Accepting a late payment on a note would be an example of a waiver by conduct. It is possible to make a waiver by silence. For example, failure to object to the manner of performance in a timely manner would be a waiver by silence.
A party who waives a breach gives up the right to damages or remedies regarding such breach, and cannot use the breach as an excuse to keep from performing the contract.
A waiver may be express or implied. An example of an implied waiver would be accepting a defective performance without objection. A waiver only applies to the specific matter waived. A party is entitled to require the other party to strictly perform all other contractual obligations set forth in the contract.
A party may retain the right to recover damages caused by another party’s breach if the party expressly reserves the right to damages at the time the party accepts a defective performance. This reservation of rights should be, but does not have to be, in writing.
A contracting party is entitled to damages if the other party breaches a contract. Generally, damages are the sum of money necessary to put a party in the same or equivalent financial position as the party would have been had the contract been performed. A party may recover compensatory damages for any actual loss that the party can prove with reasonable certainty.