Contract for flour. It was to pay paid by confirmed bankers credit. D accepted payments not on the baker's credit. Eventually ended K because payments were not done on confirmed bankers credit
Did the seller waiver term in K requiring payment by confirmed bankers credit?
It is open to a party to a contract to waive a condition that is inserted for his benefit.
**And having waived it does not mean it is at an add, they can go back with notice and un-waive it
Once you waive a condition, if you want to rely on that condition at a later date you must give reasonable notice to the other party.
Sellers argue that just because they made shipments w/o insisting on the condition does not mean they released the buyer in respect of subsequent shipments. Buyers say by shipping as they did, they waived any possible objection – and if the seller was to insist on performance on the condition they needed to give warning.
If seller had given reasonable notice and the buyer failed to comply, then buyer would have been in default.
Test for waiver (Bensten v Taylor) – Did the D’s by their acts or conduct lead P reasonably to suppose that they did not intend to treat the contract for the future as at an end, on account for the failure to perform the condition precedent?
There was no notice given – therefore sellers in the wrong