History:
L. 1965, ch. 564, § 32; Repealed, L. 2007, ch. 89, § 49; July 1, 2008.
KANSAS COMMENT, 1996
1. Subsection (1) outlines the effect of a course of performance by the parties under their contract. For conduct to constitute a course of performance, the contract must involve repeated occasions for performance by a party. A single instance of conduct does not constitute a course of performance. See Official Comment 4 to this section. The other party must have knowledge of the nature of the performance and the opportunity to object, yet nevertheless accept or acquiesce without timely objection. If the other party objects to the conduct, there is no course of performance.
2. A course of performance can serve a number of purposes. Under subsection (1), a course of performance is relevant in interpreting the parties' agreement. Under 84-2-202(a), a course of performance may supplement the parties' agreement by supplying a missing term. Under subsection (3), it may show waiver or modification of the contract terms. This provision is important given subsection (2), which provides that express terms control a conflicting course of performance. Thus, even if the express term and the course of performance cannot be construed as consistent with each other, the course of performance may nonetheless be a waiver or modification.
3. Subsection (2) also incorporates course of performance into the hierarchy set out in 84-1-205(4). It makes clear that a course of performance controls over a course of dealing and a usage of trade. This ranking makes sense, since the parties' course of performance under this contract, if available, presumably is a better indication of their intent than a course of dealing under another contract or a usage of trade.
4. Unlike course of dealing and usage of trade, which apply throughout the Code (see 84-1-205), course of performance under this section applies only to contracts for the sale of goods under Article 2. Nevertheless, Kansas courts apply a similar concept under other articles of the Code. See, e.g., North Central Kansas Prod. Credit Ass'n v. Washington Sales Co., 223 K. 689, 577 P.2d 35 (1978) ("course of conduct" under Article 9); see also 1996 Kansas Comment 7 to 84-1-205.
Law Review and Bar Journal References:
"Survey of Kansas Law: Contracts," Mary Kathleen Babcock, 27 K.L.R. 215, 218 (1979).
Mentioned in "Survey of Kansas Law: Secured Transactions," J. Eugene Balloun, 27 K.L.R. 301, 305 (1979).
CASE ANNOTATIONS
1. Section inapplicable to action for breach of warranty in assignment clause of security agreement; governed by K.S.A. 84-9-102(1) (b). United American State Bank & Trust Co. v. Wild West Chrysler Plymouth, Inc., 221 Kan. 523, 526, 561 P.2d 792.
2. Sales contract was not modified by usage of trade or course of performance. McRae v. Publications Intern., Ltd., 985 F. Supp. 1036, 1041 (1997).
3. Court must decide if plaintiff's evidence establishes a "course of dealing." Cravotta v. Deggingers' Foundry, Inc., 42 Kan. App. 2d 700, 215 P.3d 636 (2009).
Simon v. Nat'l Farmers Org., Inc., 829 P.2d 884 (Kan. 1992). · cites it 4דare otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or…”
Wayman v. Amoco Oil Co., 923 F. Supp. 1322 (D. Kan. 1996). · cites it 4דare otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or…”
Barbara Oil Co. v. Kansas Gas Supply Corp., 827 P.2d 24 (Kan. 1992). · cites it 2דare otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or…”
Serv. Iron Foundry, Inc. v. M. A. Bell Co., 588 P.2d 463 (Kan. Ct. App. 1978). · cites it 2דare otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or…”
Jordan v. Doonan Truck & Equip., Inc., 552 P.2d 881 (Kan. 1976). · cites it 2ד“(a) by course of dealing or usage of trade (section 84-1-205) or by course of performance (section 84-2-208); and “(b) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of…”
LNS Inv. Co., Inc. v. Phillips 66 Co., 731 F. Supp. 1484 (D. Kan. 1990). “00 or more, and thus subject to the statute of frauds contained in K.S.A. 84-2-201. Plaintiff is also correct that a term of the written contract may be modified or waived by the parties’ course of performance under K.”
McRae v. Publications Int'l, Ltd., 985 F. Supp. 1036 (D. Kan. 1997). “With regard to course of performance, PIL suggests that K.S.A. 84-2-208 raises a question of fact on the issue of breach.”
Tri-State Commodities, Inc. v. GSO Am., Inc., 18 F. App'x 737 (10th Cir. 2001). “Tri-State points to its dealings with Munson as a “course of performance” intended to support its interpretation of the contract, arguing that it would not enter into a minimum requirements contract with Munson without being confident that it had a similar arrangement with its…”
— K.S.A. § 84-2-208(2) — 1 case
Wayman v. Amoco Oil Co., 923 F. Supp. 1322 (D. Kan. 1996). “are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or…”
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