4.08. Unwritten Modifications and Waivers
It is well-settled law that contracts can be modified, or rights waived, orally123 or by the course of conduct by the parties,124 notwithstanding a provision in the contract that no waivers or modifications are enforceable except those in writing. The application of this general rule is very fact dependent, as the cases make clear that Delaware courts will likely not modify a written agreement without a strong factual showing. The oral contract or course of conduct must be sufficiently specific and direct as to establish the intention of the parties to modify the requirement to which they previously agreed in writing.125 Nor do the Delaware courts appear to be reluctant to find ways around the statute of frauds in finding that such unwritten modifications have been made.126
Although there do not appear to be any Delaware cases directly on point, courts in other jurisdictions have examined the limits to such unwritten modifications or waivers where the parties clearly intended in their written agreement to identify a covenant as not being susceptible to waiver or modification by oral contract or course of conduct.127 Such a conclusion would seem to be consistent with the likelihood of a Delaware court to give maximum effect to the principle of freedom of contract in enforcing such an agreement.128
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Notes:
[123] Reeder v...
