Wisconsin Statutes
Wis. Stat. § 402.208 (2026)
Course of performance or practical construction
✓ current as of July 2026
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402.208(1)(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.
402.208(2)(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).
402.208(3)(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.
402.208 AnnotationThe 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).
402.208 AnnotationA 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).
Notes of Decisions
Cited in 10
cases (1 in the last 5 years), 1979–2021 · leading case: Royster-Clark, Inc. v. Olsen's Mill, Inc., 2006 WI 46 (Wis. 2006).
Royster-Clark, Inc. v. Olsen's Mill, Inc., 2006 WI 46 (Wis. 2006). “(quoting Wis. Stat. § 402.208 (3)). Therefore, if Royster or Olsen's Mill acted in a manner inconsistent with the terms called for in the written agreement, the circuit court certainly could infer from those inconsistent actions that a modification took place.”
Christensen v. Equity Coop. Livestock Sale Ass'n, 396 N.W.2d 762 (Wis. Ct. App. 1986). “Section 402.208(2), Stats., provides: 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,…”
Novelly Oil Co. v. Mathy Constr. Co., 433 N.W.2d 628 (Wis. Ct. App. 1988). “" Sec. 402.208(1), Stats., (emphasis added).”
Pure Milk Prods. Coop. v. Nat'l Farmers Org., 280 N.W.2d 691 (Wis. 1979). “(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…”
Schaller v. Marine Nat'l Bank of Neenah, 388 N.W.2d 645 (Wis. Ct. App. 1986). “Although a "course of performance" under sec. 402.208, Stats., may aid in interpreting a previously existing contract, and may evidence a modification or waiver of its terms, sec.”
Volvo Cars of North Am., LLC v. United States, 571 F.3d 373 (4th Cir. 2009). “See also Wis. Stat. § 402.208 (1). While we thus look to state law to determine the nature of the interest that Volvo has in the previously transferred inventory, see Nat’l Bank of Commerce, 472 U.”
Liebzeit v. FVTS Acquisition Co. (In Re Wolverine Fire Apparatus Co.), 465 B.R. 808 (Bankr. E.D. Wis. 2012). “§ 402.208(3) provides that a course of performance inconsistent with any terms of an agreement shall be “relevant to show a waiver or modification” of that term.”
Oregon Potato Co. v. Kerry Inc. (W.D. Wis. 2021). “) 3 In addition to the qualifying language in the emails, Kerry relies on a spreadsheet purporting to show that many of OPC’s 2018 orders were delayed, which Kerry says is evidence of a course of dealing under Wis. Stat. § 402.208 that OPC didn’t expect strict adherence to…”
Mar.-Ontario Freight Lines, Ltd. v. STI Holdings, Inc., 481 F. Supp. 2d 963 (W.D. Wis. 2007). “Additionally, “course of performance” is defined under Wis. Stat. § 402.208 in relevant part as follows: (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…”
Hydraulics Int'l Inc v. Amalga Composites Inc (E.D. Wis. 2020). ““The statute’s reference to ‘any other provisions,’ therefore, necessarily encompasses those sections relating to course of performance (§ 402.208) and course of dealing and usage of trade (§ 401.”
— Wis. Stat. § 402.208(1) — 1 case
Novelly Oil Co. v. Mathy Constr. Co., 433 N.W.2d 628 (Wis. Ct. App. 1988). “" Sec. 402.208(1), Stats., (emphasis added).”
— Wis. Stat. § 402.208(2) — 1 case
Christensen v. Equity Coop. Livestock Sale Ass'n, 396 N.W.2d 762 (Wis. Ct. App. 1986). “Section 402.208(2), Stats., provides: 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,…”
— Wis. Stat. § 402.208(3) — 2 cases
Christensen v. Equity Coop. Livestock Sale Ass'n, 396 N.W.2d 762 (Wis. Ct. App. 1986). “Section 402.208(2), Stats., provides: 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,…”
Liebzeit v. FVTS Acquisition Co. (In Re Wolverine Fire Apparatus Co.), 465 B.R. 808 (Bankr. E.D. Wis. 2012). “§ 402.208(3) provides that a course of performance inconsistent with any terms of an agreement shall be “relevant to show a waiver or modification” of that term.”
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