DEFENDANTS’ FAILURE TO INSIST ON PROMISED MONTHLY MINIMUM PURCHASES OF DEFENDANTS’ PRODUCTS CONSTITUTED A WAIVER OF THE CONTRACTUAL MINIMUM PURCHASE REQUIREMENTS, NOTWITHSTANDING A NO ORAL WAIVER CLAUSE.

The Second Department, in a full-fledged opinion by Justice Chambers, determined the failure of defendants to insist on the fulfillment of plaintiffs’ promise to make monthly minimum purchases of defendants’ product constituted a waiver of the minimum-purchases contract, notwithstanding the “no oral waiver” contractual provision:

… [W]e find that the Supreme Court properly concluded that … the affirmative conduct of [defendants] over the previous weeks and months evinced an unmistakable intent to waive the remaining 2006 minimum purchase requirements, including the 2006 annual minimum purchase requirement … . * * *

…[W]e agree with the Supreme Court that, under the facts presented, the agreements’ no-oral-waiver provision … does not compel a different result. As explained above, the [plaintiffs’] persistent and repeated failure to meet minimum purchase requirements, coupled with [defendants’] continued acceptance of such conduct without any reservation or protest until a few weeks before the expiration of the agreements (by which time it was, of course, too late to insist upon strict compliance with the terms of the agreements), equitably estops [defendants] from invoking the benefit of the no-oral-waiver provision … . Kamco Supply Corp. v On the Right Track, LLC, 2017 NY Slip Op, 02025, 2nd Dept 3-22-17

 

CONTRACT LAW (DEFENDANTS’ FAILURE TO INSIST ON PROMISED MONTHLY MINIMUM PURCHASES OF DEFENDANTS’ PRODUCTS CONSTITUTED A WAIVER OF THE CONTRACTUAL MINIMUM PURCHASE REQUIREMENTS, NOTWITHSTANDING A NO ORAL WAIVER CLAUSE)/WAIVER (CONTRACT LAW, (DEFENDANTS’ FAILURE TO INSIST ON PROMISED MONTHLY MINIMUM PURCHASES OF DEFENDANTS’ PRODUCTS CONSTITUTED A WAIVER OF THE CONTRACTUAL MINIMUM PURCHASE REQUIREMENTS, NOTWITHSTANDING A NO ORAL WAIVER CLAUSE)