Parties to a contract often have second thoughts. They may feel that the contract terms are unfair, the effects are unreasonable, or they simply do not want to pursue the matter further. Through their language, documents, and behavior, they may abandon a contract, release a party, or waive rights thereunder. In other words, they may effect a waiver, a release, or an abandonment. So what’s the difference between these three concepts?

As discussed below, the distinctions between waiver, release, and abandonment are discrete and may require a skilled attorney to argue for or against them. If you have any questions about contract waiver, waiver of rights, contract release, release of rights, contract abandonment, or abandonment of rights, please contact Bernhard Law Firm at www.bernhardlawfirm.com, 786-871-3349, abernhard@bernhardlawfirm.com. Bernhard Law Firm is a Miami law firm focusing on trials and appeals in business and financial disputes.

The difference between waiver, release, and abandonment does not readily appear in their preliminary definitions. Let’s look at Black’s Law. A release is a relinquishment or concession of a right, title, or claim. A waiver is a voluntary relinquishment or abandonment, express or implied, of a legal right or advantage. Abandonment is the relinquishing of a right or interest with the intention of never claiming it. Looking at these three preliminary definitions, it seems that there is not really much difference in meaning between waiver, release, and abandonment.

The predominant difference between waiver, release, and abandonment instead emerges in the spontaneous separation of the concepts in case law. This may be due to customary language usage in transactional and settlement documents, timing of use in the chronology of a transaction or dispute, and evidentiary hurdles encountered under one doctrine over the other. Waivers often present themselves in initial transactional documents (disclaimers) or before litigation. Releases often present themselves in settlement agreements after litigation of a dispute. Abandonment often occurs in more informal relationships or where parties have walked away without formal written statements of waiver or release.

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The ultimate effect may be the same. A release may operate as a complete defense to all claims brought for breach of contract for sale of real estate, even by a contract assignee. Plumpton v. Continental Acreage Dev. Co., Inc., 830 So. 2d 208, 211–12 (Fla. 5th DCA 2002) (release was complete defense to assignee claims for breach of land sale contract); AXA Equitable Life Ins. Co. v. Gelpi, 12 So. 3d 783, 784 (Fla. 3d DCA 2009) (release barred any claim or action arising out of relationship). Where release language is clear and unambiguous, the Court cannot indulge in reinterpretation of its plain meaning or claims of a unilateral mistake from the want of due care. Plumpton at 211.

Similarly, a person waives a right where the person had knowledge of it and acted inconsistent with it. See Hammond v. DSY Developers, LLC, 951 So. 2d 985, 988 (Fla. 3d DCA 2007) (counteroffer after acceptance deadline was waiver of acceptance date); Inverrary Gardens Condo. I Ass’n, Inc. v. Spender, 939 So. 2d 1159, 1161 (Fla. 4th DCA 2006) (manager waived right to arbitrate); Mike Bradford & Co. v. Gulf States Steel Co., 184 So. 2d 911, 915 (Fla. 3d DCA 1966) (company waived arbitration by answering without raising arbitration). This also acts as a complete defense to enforcement of a contract or suit for damages. Id.

Apart from release and waiver, parties may also invalidate a contract through abandonment—conduct inconsistent with its validity and enforceability, or acquiescence thereto, even where the parties performed the initial formalities of contract formation (i.e. signing). See, e.g., Maruri v. Maruri, 582 So. 2d 116, 117 (Fla. 3d DCA 1991). Abandonment renders a contract legally invalid and unenforceable. Id.; Gustafson v. Jensen, 515 So. 2d 1298, 1301 (Fla. 3d DCA 1987); Plant v. Plant, 320 So. 2d 455, 457 (Fla. 3d DCA 1975 (holding party abandoned contract by failing to obtain insurance policy for benefit of other party as required by the contract); Sinclair Refining Co. v. Butler, 172 So. 2d 499, 502 (Fla. 3d DCA 1965) (parties’ conduct abandoned notwithstanding their written covenants).

Abandonment is tantamount to a rescission of the contract by mutual consent. Maruri, 582 So. 2d at 117; see also Painter v. Painter, 823 So. 2d 268, 270 (Fla. 2d DCA 2002) (abandonment where one failed to pay and other acquiesced to declare the contract void); McMullen v. McMullen, 185 So. 2d 191, 193 (Fla. 2d DCA 1966) (parties abandoned contract for property where one party later re-conveyed at profit and other acquiesced). A party may prove abandonment of a contract by showing that the acts of one party are inconsistent with the existence of the contract and that the other party acquiesced in those acts. Painter at 270. Thus, abandonment too operates as a complete defense to enforcement of a contract or damages thereon.

In sum, the distinctions between waiver, release, and abandonment are discrete and may require a skilled attorney to argue for or against them. If you have any questions about contract waiver, waiver of rights, contract release, release of rights, contract abandonment, or abandonment of rights, please contact Bernhard Law Firm at www.bernhardlawfirm.com, 786-871-3349, abernhard@bernhardlawfirm.com. Bernhard Law Firm is a Miami law firm focusing on trials and appeals in business and financial disputes.

Read more on contract abandonment here: https://fraudlawyersflorida.com/2015/02/22/contract-abandonment-may-automatically-rescind-an-agreement-to-arbitrate/

Read more on contract reformation here: https://fraudlawyersflorida.com/2017/09/29/how-to-reform-real-estate-contracts-with-good-reason/

Read more on demanding contract performance here: https://fraudlawyersflorida.com/2016/10/26/can-a-real-estate-seller-demand-performance-from-a-defaulting-buyer-florida-law-says-yes/