402.208 Course of performance or practical construction.
(1) Where the contract for sale involves repeated occasions for performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other, any course of performance accepted or acquiesced in without objection shall be relevant to determine the meaning of the agreement.
(2) The express terms of the agreement and any such course of performance, as well as any course of dealing and usage of trade, shall be construed whenever reasonable as consistent with each other; but when such construction is unreasonable, express terms shall control course of performance and course of performance shall control both course of dealing and usage of trade (s. 401.303).
(3) Subject to s. 402.209 on modification and waiver, such course of performance is relevant to show a waiver or modification of any term inconsistent with such course of performance.
The requirement of “conformity" does not subject the seller to performing the contract to the satisfaction of the buyer, but only to the terms of the contract. H.B. Fuller Co. v. Kinetic Systems, Inc. 932 F.2d 681 (1991).
A single occasion of conduct does not constitute a “course of performance" within the meaning of this section. Maritime-Ontario Freight Lines, LTD. v. STI Holdings, Inc. 481 F. Supp. 2d 963 (2007).
History: 2009 a. 320.
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