(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 (section 4-1-303).
(3) Subject to the provisions of section 4-2-209 on modification and waiver, such course
of performance shall be relevant to show a waiver or modification of any term inconsistent with
such course of performance.
Source: L. 65: p. 1304, § 1. C.R.S. 1963: § 155-2-208. L. 2006: (2) amended, p. 490, §
6, effective September 1.
Notes of Decisions
KN Energy, Inc. v. Great W. Sugar Co., 698 P.2d 769 (Colo. 1985).
· cites it 2× “Course of performance may be used as an aid to interpretation whenever one party accepts repeated performance by the other party with knowledge of the nature of that performance and an opportunity to object to it.”
Moffat Cnty. State Bank v. Producers Livestock Mktg. Ass'n, 598 F. Supp. 1562 (D. Colo. 1984).
· cites it 2× “Pursuant to Colo.Rev.Stat. § 4-2-208(3) (1973), a “course of performance shall be relevant to show a waiver or modification of any term inconsistent with such course of performance.”
Colorado State Bank of Walsh v. Hoffner, 701 P.2d 151 (Colo. Ct. App. 1985).
· cites it 2× “In this case, the president of the bank consented to the sale of the cattle, and told a third party to go ahead with that sale.”
Carter Baron Drilling v. Badger Oil Corp., 581 F. Supp. 592 (D. Colo. 1984).
· cites it 4× “C.R.S. § 4-2-208, when read in the light of § 4-2-202, performs the same function for course of performance evidence.”
Jeffrey v. KN Energy, Inc., 652 F. Supp. 511 (D. Colo. 1987).
· cites it 2× “This evidence raises a genuine issue of material fact as to plaintiffs’ waiver, under Colo.Rev.Stat. §§ 4-2-208(3) and 4-2-209(4), of the legal interpretation they now ask me to enforce.”
— Colo. Rev. Stat. § 4-2-208(1) — 1 case
— Colo. Rev. Stat. § 4-2-208(2) — 2 cases
KN Energy, Inc. v. Great W. Sugar Co., 698 P.2d 769 (Colo. 1985).
“Course of performance may be used as an aid to interpretation whenever one party accepts repeated performance by the other party with knowledge of the nature of that performance and an opportunity to object to it.”
— Colo. Rev. Stat. § 4-2-208(3) — 3 cases
Colorado State Bank of Walsh v. Hoffner, 701 P.2d 151 (Colo. Ct. App. 1985).
“In this case, the president of the bank consented to the sale of the cattle, and told a third party to go ahead with that sale.”
Jeffrey v. KN Energy, Inc., 652 F. Supp. 511 (D. Colo. 1987).
“This evidence raises a genuine issue of material fact as to plaintiffs’ waiver, under Colo.Rev.Stat. §§ 4-2-208(3) and 4-2-209(4), of the legal interpretation they now ask me to enforce.”
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