ORS 72.2080¹
Course of performance or practical construction

(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.

(3) Subject to the provisions of ORS 72.2090 (Modification, rescission and waiver) 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. [1961 c.726 §72.2080 (Course of performance or practical construction)]

Notes of Decisions

Provision that express terms control inconsistent course of dealing cannot be taken at face value; express terms, including anti-waiver clauses, may be waived by course of performance inconsistent with those terms. Oregon Bank v. Nautilus Crane and Equip­ment Corp., 68 Or App 131, 683 P2d 95 (1984)

Although integrated docu­ment need not be ambiguous before it may be supple­mented or explained by evidence of course of dealing, course of performance or usage of trade, docu­ment must be reasonably susceptible to interpreta­tion suggested by such evidence before such evidence is admissible. Deerfield Commodities v. Nerco, Inc., 72 Or App 305, 696 P2d 1096 (1985), Sup Ct review denied

Chapter 72

Law Review Cita­tions

53 OLR 468-473 (1974); 58 OLR 545 (1980)

1 Legislative Counsel Committee, CHAPTER 72—Sales, https://­www.­oregonlegislature.­gov/­bills_laws/­Archive/­2007ors72.­pdf (2007) (last ac­cessed Feb. 12, 2009).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2007, Chapter 72, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­072ano.­htm (2007) (last ac­cessed Feb. 12, 2009).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent. Currency Information