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the parol-evidence rule would not bar evidence of the separate contract for the sewer. The sewer contract was sufficiently collateral to, and independent of, the contract for the water tank that the parties would not necessarily have included the former’s terms in the latter. [ Adapted from Bird Lakes Development Corp. v. Meruelo , 626 So.2d 234 (Fla. Dist. Ct. App. 1993).] Modification, Rescission, and Waiver As mentioned, at common law, any modification to a valid contract requires consideration to be binding. Article 2 seeks to make it easier for parties to modify contracts for the sale of goods. Section 2-209 also sets forth rules governing the related concepts of rescission and waiver. 1. Distinguishing Modification, Rescission, and Waiver It is important to distinguish among the distinct but conceptually similar concepts of modification, rescission, and waiver—a distinction that befuddles many courts, let alone practitioners and students. In a modification, both parties agree to somehow alter one or both parties’ contractual obligations. Waiver, by contrast, means that one party has intentionally relinquished or surrendered some known contractual right, entitlement, or expectation. To the extent one party validly waives a contractual right, the other party cannot be liable for breach for refusing to honor that right (unless the waiver has been retracted). Finally, rescission, in this context, generally means that the parties bilaterally agree to abandon or extinguish the contract, as opposed to a unilateral termination or cancellation. (The term rescission also references a possible remedy for breach of contract.) [ See U.C.C. § 2-209, cmt. 3 (1951); 2A Anderson U.C.C. §§ 2-209:49, 2-209:50, 2-209:54, 2-209:97 (3d. ed.), Westlaw (database updated June 2021).] Note : Article 2 itself contains very few rules regarding waiver and rescission. Here, the common law of contracts generally supplies the relevant rules, except insofar as the common law might be inconsistent with Article 2. [ See Role of the Common Law in a Transaction Subject to the UCC, supra .] 2. Retraction of a Waiver If a party makes a waiver affecting a material, unperformed portion of the contract, Article 2 generally permits that party to retract the waiver. For the retraction to be effective, the counterparty must receive reasonable notification that strict performance of the waived term will be required. An effective retraction voids the waiver and renders the formerly waived provision enforceable. However, a retraction is ineffective if there has been a material change of position in reliance on the waiver, and this change of position would make the retraction unjust. [U.C.C. § 2-209(5) (1951).]
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