The term course of performance is defined in the

Uniform Commercial Code The Uniform Commercial Code (UCC), first published in 1952, is one of a number of Uniform Acts that have been established as law with the goal of harmonizing the laws of sales and other commercial transactions across the United States through U ...

as follows:

(a) A "course of performance" is a sequence of conduct between the parties to a particular transaction that exists if: :(1) the agreement of the parties with respect to the transaction involves repeated occasions for performance by a party; and :(2) the other party, with knowledge of the nature of the performance and opportunity for objection to it, accepts the performance or acquiesces in it without objection.

UCC § 1-303(a)
" Course of dealing," as defined in CC § 1-303subsection (b), is restricted, literally, to a sequence of conduct between the parties previous to the agreement. A sequence of conduct after or under the agreement, however, is a "course of performance." Where a

contract A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to ...

involves repeated occasions for performance and opportunity for objection "any course of performance accepted or acquiesced in without objection shall be relevant to determine the meaning of the agreement." " ch course of performance shall be relevant to show a

waiver A waiver is the voluntary relinquishment or surrender of some known right or privilege. Regulatory agencies of state departments or the federal government may issue waivers to exempt companies from certain regulations. For example, a United S ...

or modification of any term inconsistent with such course of performance." This UCC section recognizes that the "parties themselves know best what they have meant by their words of agreement and their action under that agreement is the best indication of what that meaning was." It is well established that a written contract may be modified by the parties' post-agreement "course of performance." A

that changes the express terms of a contract can be established by evidence of a course of performance. This holds true even for contracts that are fully integrated. The policy behind this "broad doctrine of waiver" in contract law is to "prevent the waiving party from 'lull nganother into a false assurance that strict compliance with a contractual duty will not be required and then sue for noncompliance.' " It is not necessary that the contract be ambiguous before course of performance will be considered. A course of performance is shown by repeated instances of the relevant conduct, not single occasions or actions.''Dallas. Aero., Inc. v. CIS Air Corp.'', 352 F.3d 775, 783 (2d Cir. 2003); ''Cravotta v. Deggingers' Foundry, Inc.'', 288 P.3d 871 (Kan. Ct. App. 2012); ''Estate of Polushkin v. Maw'', 170 P.3d 162, 171 (Alaska 2007).

References

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