Course of Performance as Evidence of Intent or Waiver: A Meaningful Preference for the Latter and Implications for Newly Broadened Use Under Revised U.C.C. Section 1-303

Abstract

This article revisits and critiques the treatment of course of performance evidence — a fifty year old doctrine included in the original draft of U.C.C. Article 2. In view of the recent revisions to U.C.C. Article 1, which remove the treatment of course of performance evidence from the narrow confines of Article 2 and relocate this doctrine in Article 1, it seems a particularly apt time to review our experience with the use of this evidence under Article 2. Under Article 1, the use of course of performance evidence applies broadly, throughout the Uniform Commercial Code. The article also makes a contribution to the broader scholarly debate with respect to the overall effectiveness of Llewellyn’s strategy of using the Code to turn immanent commercial norms into immanent commercial law. While a significant body of scholarship has been produced to date on this broader issue, I believe this article provides a greater depth of analysis with respect to the narrow issue of course of performance evidence as a unique post-formation resource employed by courts in attempting to discover mutual contractual intent. Lastly, the article provides potential added guidance for courts in their ongoing efforts to provide consistent and principled decisions in the ever murky world of contract interpretation. As any first year Contracts student can attest, the paths through “plain meaning” and “parol evidence,” in search of a mutual “objective intent,” are often varied and all too rarely predictable with any degree of certainty.

Keywords: Analogy of wisdom, problem of reliance, course of performance, UCC, UCC 1-303, sale of goods