Code of the District of Columbia

§ 28:2-208. Course of performance or practical construction.


(Dec. 30, 1963, 77 Stat. 644, Pub. L. 88-243, § 1; Apr. 27, 2013, D.C. Law 19-299, § 3(d), 60 DCR 2634.)

Prior Codifications

1981 Ed., § 28:2-208.

1973 Ed., § 28:2-208.

Editor's Notes

For present law, see § 28:1-303.

Uniform Commercial Code Comment

Prior Uniform Statutory Provision: No such general provision but concept of this section recognized by terms such as “course of dealing“, ‘’the circumstances of the case,“ ‘’the conduct of the parties,“ etc., in Uniform Sales Act.

Purposes: 1. 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. This section thus rounds out the set of factors which determines the meaning of the “agreement” and therefore also of the “unless otherwise agreed” qualification to various provisions of this Article.

2. Under this section a course of performance is always relevant to determine the meaning of the agreement. Express mention of course of performance elsewhere in this Article carries no contrary implication when there is a failure to refer to it in other sections.

3. Where it is difficult to determine whether a particular act merely sheds light on the meaning of the agreement or represents a waiver of a term of the agreement, the preference is in favor of “waiver” whenever such construction, plus the application of the provisions on the reinstatement of rights waived (see Section 2-209), is needed to preserve the flexible character of commercial contracts and to prevent surprise or other hardship.

4. A single occasion of conduct does not fall within the language of this section but other sections such as the ones on silence after acceptance and failure to specify particular defects can affect the parties’ rights on a single occasion (see Sections 2-605 and 2-607).

Cross References: Point 1: Section 1-201.

Point 2: Section 2-202.

Point 3: Sections 2-209, 2-601 and 2-607.

Point 4: Sections 2-605 and 2-607.