Condonation
The voluntary forgiveness or overlooking of a breach or wrongdoing by the innocent party, which may bar future claims based on that conduct.
While straightforward in theory, many businesses fail to actively track obligations tied to this concept - often resulting in missed deadlines, unintended renewals, penalties, or loss of contractual rights.
US Law · For business owners and foundersWhat is a Condonation?
Condonation occurs when the innocent party, with knowledge of a breach or wrongdoing, voluntarily forgives or overlooks it - typically by continuing the contractual relationship without complaint. The condoning party's subsequent conduct signals acceptance of the breach, potentially extinguishing the right to rely on it later.
In employment law, condonation is particularly significant: an employer who is aware of an employee's misconduct but takes no action and continues the employment may be barred from later dismissing the employee for that same conduct. The same principle applies in commercial leases, ongoing supply agreements, and distribution contracts.
Condonation does not require express forgiveness - it can arise from silence, inaction, or continued performance after learning of the breach. This makes it a dangerous trap for parties who intend to preserve their rights but fail to document their position promptly.
In practice, many teams rely on a contract expiry tracking system to stay on top of dates and obligations tied to clauses like this.
Key Elements
Knowledge of the Breach
Condonation requires that the innocent party actually knew about the breach or misconduct. A party cannot condone what they did not know existed.Voluntary Continuation
After learning of the breach, the innocent party must voluntarily continue the relationship - making payments, accepting deliveries, or retaining the employee - without asserting their rights.Effect on Future Claims
Once a breach is condoned, the innocent party generally cannot use that specific breach as a basis for termination or damages in the future. However, a new breach of the same type may not be condoned.Conditional Condonation
Courts sometimes recognize conditional condonation - where the innocent party continues the relationship on the express condition that the breach not recur. A subsequent breach of the same kind then becomes the basis for termination.Real-World Example
A commercial tenant is consistently 15 days late on rent. The landlord accepts each late payment for six months without complaint. The landlord then attempts to terminate the lease for the seventh late payment.
A court may find that the landlord condoned the late payment pattern by consistently accepting it without protest. To restore their right to enforce the strict payment deadline, the landlord should have issued a written notice reserving their rights and warning that future late payments would not be tolerated.
This is why many businesses adopt automated deadline tracking to ensure no critical dates are missed before they pass.
Sample Clause Language
Non-Condonation / Reservation of Rights ClauseWatch Out For
Accepting payments after a material breach
Accepting payments or performance after learning of a material breach can constitute condonation and may prevent you from exercising termination rights. Issue a written reservation of rights immediately.Employment misconduct condonation
Employers who fail to act promptly on known misconduct risk condonation. Document all incidents and take action consistent with your HR policies. Inaction signals acceptance.Repeated minor breaches becoming condoned
A pattern of overlooking minor breaches - late reports, minor defects, small payment shortfalls - can create an implied modification of the contract by condonation. Address breaches promptly even when small.Don't let condonation deadlines catch you off guard
Key dates tied to condonations - renewal windows, expiry cutoffs, notice periods - can easily slip through the cracks when tracked manually. Missing them triggers automatic extensions, penalties, or lost rights. ExpiryEdge tracks every critical deadline and sends automated reminders before they're due - so nothing slips.
Instead of relying on spreadsheets or manual follow-ups, a centralized renewal reminder system ensures every deadline is visible, tracked, and actioned automatically.
How to Use This in Your Favor
Issue a written reservation of rights immediately
Whenever you accept a deficient or late performance, send a contemporaneous written notice stating you are accepting under protest and reserving all rights. This prevents condonation from arising.Include a non-waiver/non-condonation clause
Add a boilerplate clause stating that no acceptance of non-conforming performance constitutes a waiver or condonation of any term. This clause supports your position if a dispute arises.Related Terms
Frequently Asked Questions
Is condonation the same as waiver?
They are closely related but distinct. Waiver is the intentional relinquishment of a known right, typically for one instance. Condonation involves forgiving past misconduct, potentially barring use of that specific conduct as grounds for future action. Both can arise from conduct as well as express statements.
Can I condone a breach and still claim damages for it?
Not typically. Condonation forgives the breach, which usually precludes damages for the condoned conduct. However, you may still recover for losses suffered before you condoned the breach if those losses were already quantifiable.