Conn. Civ. Jury Instr. 4.2-22

The defendant asserts that (he/she/it) is not liable to the plaintiff because the plaintiff waived

compliance with the pertinent provision of the contract, namely <describe>. Waiver acts to

excuse a noncompliance or a delay of compliance as to an obligation imposed under the contract.

Waiver is defined as the voluntary relinquishment of a known right.

In order for this special defense to excuse the defendant from liability, the defendant bears the

burden of proving, by a preponderance of the evidence:

1. that the plaintiff knew that the defendant failed to comply with the <particular

provision of the contract>; and

2. that the plaintiff voluntarily intended to give up the right to enforce compliance

by the defendant.

A waiver need not be expressly announced by the plaintiff, but can consist of actions, inaction,

or other conduct by the plaintiff, in the context of all the surrounding circumstances, that

reasonably imply that the plaintiff knew of and voluntarily relinquished the right to require that

the defendant fulfill that particular term of the contract. The defendant can demonstrate that a

waiver occurred through evidence of explicit acknowledgment of waiver by the plaintiff or

through evidence of the plaintiff’s conduct amid existing circumstances, or a combination of

both types of evidence, that logically and reasonably support the conclusion that the plaintiff

knew of the defendant’s delinquency and specifically intended to give up any right to enforce

compliance.

In reaching your decision as to whether the defendant has proven the special defense of waiver,

you may consider such factors as whether the plaintiff continued to maintain the relationship

with the defendant after learning of the defendant’s noncompliance or whether the plaintiff

voiced any objection or issued any warning to the defendant about noncompliance.

[<If applicable, instruct on continuing waiver:> The fact that a party to a contract waives

noncompliance by the other party on one occasion does not necessarily imply that such

dereliction will be tolerated by that party in the future. In order for you to find that a continuing

waiver was intended by the plaintiff, the defendant must prove that repeated instances of

noncompliance occurred and that adequate opportunities for the plaintiff to object to such

noncompliance existed and were not utilized to the point that you are satisfied that the plaintiff

possessed knowledge of the deficiencies but intentionally elected to waive noncompliance of the

same character in the future.]