Under the common law of contracts, waiver is the "intentional relinquishment of a known right." Dynamic Mach. Works, Inc . v. Machine & Elec. Consultants, Inc. , 444 Mass. 768, 771, 831 N.E.2d 875 (2005) (quotation omitted). Waiver may be express or "inferred from a party's conduct and the surrounding circumstances."
Waiver is the "intentional relinquishment of a known right." Dynamic Mach. Works, Inc. v. Machine & Elec. Consultants, Inc., 444 Mass. 768, 771, 831 N.E.2d 875 (2005), quoting Doujotos v. Leventhal, 271 Mass. 280, 282, 171 N.E. 445 (1930). "[W]aiver must be shown clearly, unmistakably, and unequivocably" (citation omitted).
(Internal quotation marks omitted.) Dynamic Machine Works, Inc. v. Machine & Electrical Consultants, Inc., 444 Mass. 768, 771–72, 831 N.E.2d 875 (2005); 2A L. Lawrence, supra, at § 2–209:50, p. 51. Second, and relatedly, whereas the modification of a contract may not be revoked without the consent of both parties, the obligee may, under certain circumstances, unilaterally retract its waiver of a contractual requirement. See Dynamic Machine Works, Inc. v. Machine & Electrical Consultants, Inc., supra, 444 Mass. at 772, 831 N.E.2d 875; Nassau Trust Co. v. Montrose Concrete Products Corp., 56 N.Y.2d 175, 184, 436 N.E.2d 1265, 451 N.Y.S.2d 663, appeal denied, 57 N.Y.2d 674, 454 N.Y.S.2d 1032, 439 N.E.2d 1247 (1982).
(Internal quotation marks omitted.) Dynamic Machine Works, Inc. v. Machine & Electrical Consultants, Inc., 444 Mass. 768, 771–72, 831 N.E.2d 875 (2005); 2A L. Lawrence, supra, at § 2–209:50, p. 51. Second, and relatedly, whereas the modification of a contract may not be revoked without the consent of both parties, the obligee may, under certain circumstances, unilaterally retract its waiver of a contractual requirement.
A modification is the result of bilateral action and both parties to a contract must agree to the modification. Dynamic Mach. Works, Inc. v. Machine & Elec. Consultants, Inc., 444 Mass. 768, 771-72, 831 N.E.2d 875 (2005); see also Brown v. OneWest Bank, FSB, 86 Mass.App.Ct. 1107, at *6, 13 N.E.3d 1027 (2014) (Unpublished Rule 1:28 opinion) (finding proposed modification unenforceable where party did not intend to be bound). A contract modification must be supported by valid consideration. Tri City Concrete Co. v. A.L.A. Constr. Co., 343 Mass. 425, 427, 179 N.E.2d 319 (1962).
LHH's argument that WWP waived its right under the MOU to receive repayment also suffers from both these critical defects. "Massachusetts common law defines waiver as the 'intentional relinquishment of a known right.'" Dynamic Mach. Works, Inc. v. Mach. & Elec. Consultants, Inc., 831 N.E.2d 875, 879 (Mass. 2005) (citation omitted). And it requires "[a] waiver implied by a person's conduct," such as that suggested here, to "be unequivocal . . . allow[ing] room for no other explanation of the conduct of the person who allegedly is waiving a contractual right."
The parties are in agreement that the law of Massachusetts controls the merits of their dispute. Waiver of a contractual right “may occur by an express and affirmative act, or may be inferred by a party's conduct, where the conduct is ‘consistent with and indicative of an intent to relinquish voluntarily a particular right [such] that no other reasonable explanation of [the] conduct is possible.’ ” KACT, Inc. v. Rubin, 62 Mass.App.Ct. 689, 819 N.E.2d 610, 616 (2004) (alterations in original) (quoting Attorney Gen. v. Indus. Nat'l Bank of R.I., 380 Mass. 533, 404 N.E.2d 1215, 1218 n. 4 (1980)); see also Dynamic Mach. Works, Inc. v. Mach. & Elec. Consultants, Inc., 444 Mass. 768, 831 N.E.2d 875, 880 (2005) (noting that waiver may be express or “inferred from a party's conduct and the surrounding circumstances” (internal quotation marks omitted)). If waiver is to be inferred from a party's conduct, the conduct at issue must be “clear, decisive and unequivocal.”
See alsoVerma v. Stuhr, 223 Ariz. 144, 221 P.3d 23, 36 (Ariz.Ct.App.2009); City of Ft. Smith v. McCutchen, 372 Ark. 541, 279 S.W.3d 78, 81 (2008); Dep't of Health v. Donahue, 690 P.2d 243 (Colo.1984); Young v. Oak Leaf Builders, Inc., 277 Ga.App. 274, 626 S.E.2d 240, 243 (2006); Dynamic Mach. Works, Inc. v. Mach. & Elec. Consultants, Inc., 444 Mass. 768, 831 N.E.2d 875, 879 (2005); State ex rel. Wallace v. State Med. Bd. of Ohio, 89 Ohio St.3d 431, 732 N.E.2d 960, 965 (2000); In re General Elec. Capital Corp., 203 S.W.3d 314, 316 (Tex.2006) (per curiam). 9.
. Consultants, Inc., 444 Mass. 768, 771 (2005).
BourgeoisWhite, LLP v. Sterling Lion, LLC, 71 N.E.3d 171, 176 (Mass. App. Ct. 2017) (citing Dynamic Mach. Works, Inc. v. Mach. & Elec. Consultants, Inc., 831 N.E.2d 875, 879 (Mass. 2005)).