Business and Commercial Litigation
Contract Claims
Repeated performance accepted without objection evidences the parties' interpretation. Under the UCC it ranks above course of dealing and usage of trade in resolving inconsistency.
It may also establish waiver or modification.
Alternative Names:
Performance History|Practical Construction
Why it Matters?
Because course of performance ranks highest among the interpretive aids, a party that performed a particular way and accepted the counterparty's performance without objection faces a strong argument that the conduct reflects the agreed meaning. That evidence can override a plausible textual reading. It may also establish waiver of a requirement the party now seeks to enforce, which is a separate and frequently more damaging consequence.
Frequently Confused with
Related terms
Frequently asked questions
Where does course of performance rank?
What secondary consequence arises?
