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16 AUGUST 2010 – WAIVING THE BENEFIT OF A CONDITION IN THE CONTRACT

16 AUGUST 2010 – WAIVING THE BENEFIT OF A CONDITION IN THE CONTRACT

Q.Who has the right to waive the benefit of a condition in the Contract?

A. When a party no longer wishes to rely on a condition, whether or not the condition has been satisfied, they may wish to advise that the condition is waived. The party who has the benefit of the condition should normally be able to waive the condition, although this may be arguable in some cases.

Clauses such as the finance and building and pest inspection clauses are examples of clauses for the benefit of the Buyer, which can be waived by the Buyer. Where the condition is for the benefit of both parties, then the consent of both parties is required to waive the condition. An example of this type of condition is where the settlement date is dependent on a condition in the Contract.

TIP: To avoid disputes, a condition should always set out clearly for whose benefit the clause was inserted and the circumstances in which the condition can be waived and by whom.