Page:United States Statutes at Large Volume 77.djvu/676

 644

PUBLIC LAW 88-243-DEC. 30, 1963

[77 STAT.

§28:2—^208. Course of performance or practical construction (1) Where the contract for sale involves repeated occasions for performance by eitlier 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 nieaninjr 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 28:1—205). (3) Subject to the pi^visions of the next section 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. §28:2—^209. Modification, rescission and waiver (1) An agreement modifying a contract within this article needs no consideration to be binding. (2) A signed agreement which excludes modification or rescission except by a signed writing cannot be otherwise modified or rescinded, but except as between merchants such a requirement on a form supplied by the merchant must be separately signed by the other party. (3) The requirements of the statute of frauds section of this article (section 28:2—201) must be satisfied if the contract as modified is within its provisions. (4) Although an attempt at modification or rescission does not satisfy the requirements of subsection (2) or (-5), it can operate as a waiver. (5) A party who has made a waiver affecting an executory portion of the contract may retract the waiver by reasonable notification received by the other party that strict performance will be required by any term waived, unless the retraction would be unjust in view of a material change of position in reliance on the waiver. § 28:2—^210. Delegation of performance; assignment of rights (1) A party may perfonn his duty through a delegate unless otherwise agreed or unless the other party has a substantial interest in having his original promisor perform or control the acts required by the contract. No delegation of performance relieves the party delegating of any duty to perfom or any liability for breach. (2) Unless otherwise agreed all rights of eitlier seller or buyer can be assigned except where the assignment would materially change the duty of the other party, or increase materially the burden or risk imposed on him by his contract, or impair materially his chance of obtaining return performance. A right to damages for breach of the whole contract or a right arising out of the assignor's due performance of his entire obligation can be assigned despite agreement otherwise. (3) Unless the circumstances indicate the contrary a prohibition of assignment of the contract"' is to be construed as barring only the delegation to the assignee of the assignor's performance. (4) An assignment of "the contract or of "all my rights under the contract'' or an jussignment in similar general teniis is an assignment of rights and unless the language or the circumstances (as in an assignment for security) indicate the contrary, it is a delegation of performance of the duties of the assignor and its acceptance by the assignee constitutes a promise by him to perform those duties. This

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