Feb. 4, 2018


Today’s blog will center on some of the defenses available in a breach of contract action, concerning Texas collections cases. The first area we will address often seen by Texas collection attorneys is the defense of ‘waiver’. A Waiver is defined as an intentional relinquishment of a known right and is either made expressly or indicated by conduct, that is inconsistent with an intent to claim the right. Several recent Texas Supreme Court cases construing “waiver” are as follows:

  1. Ulico Cas. Vs. Allied Pilots, 262 S.W.3d 773 (Tex. 2008);
  2. Jernigan v. Langley, 111 S.W.3d 153 (Tex. 2003)
  3. Perry Holmes v. Cull, 258 S.W.3d 580 (Tex. 2008)

Of course, the defense of waiver is fact-specific, with the court looking, not usually for an express statement by a Plaintiff that he has waived a claim, but really, conduct indicating that Plaintiff has waived his rights. One way to indicate an intent to claim a right, thereby waiving the right, would be the Plaintiff’s prolonged silence or inaction, in asserting a known right. Martin v. Birenbaum, 193 S.W.3d 677 (Tex. App. – Dallas 2006, pet. denied).

The Plaintiff’s intent is the primary factor in determining waiver, and in the absence of a clear intent expressed in words, acts, or conduct, waiver will be implied only to prevent fraud or inequitable consequences. Stowers v. Harper, 376 S.W.2d 34 (Tex. App. – Tyler 1964, writ ref’d n.r.e.).

Also, a Plaintiff may affirm a contract which has been breached, thereby waiving Plaintiff’s claim for breach of the contract, in one of two ways, such as:

  1. Showing a conscious intent to waive its claim, or
  2. Plaintiff acting to induce the Defendant’s detrimental reliance, thereby creating an estoppel situation.

There are several different fact scenarios which do not necessarily constitute waiver in Texas. The first would be Plaintiff accepting Defendant’s late performance. Another case out of the Tyler Court of Appeals held that when Plaintiff accepted late payments from Defendant, this did not clearly and unequivocally show that Plaintiff intended to relinquish its rights on prompt payment. Also in breach of contract situations, if a Plaintiff continues to perform after Defendant breaches, that is not necessarily a waiver situation. Also, where Plaintiff honestly tries to induce the Defendant to continue to perform Defendant’s obligation on the contract, this will not necessarily show a clear intent by Plaintiff to waive its rights.

We have much more to cover next week so please stay tuned for Part 2 on Defenses.

Contact Us

If you have any questions about this topic or need help with business debt collections in Dallas Texas, We Can Help – Give Us a Call:  214-752-8800 or Email Us:

*The foregoing is not intended to provide specific legal advice, but instead only as a generalized discussion