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prior conduct sheds light on the current transaction, including any intervening changes. The UCC does not expressly require this sort of similarity for course of performance. Even so, if a course of performance is to have any logical bearing at all on an issue, the repeated acts must be similar enough to each other to establish a pattern that offers insight on the parties’ intent. [1 Hawkland UCC Series § 1-303:3, Westlaw (database updated June 2021).] Examples : (1) A developer contracted with a brickmaker to purchase a specified quantity of bricks at a stated price. The contract did not articulate the bricks’ color or size. Several years before, these same parties entered a similar contract. Under the prior contract, the brickmaker delivered 12 monthly shipments of bricks. These bricks were uniformly red, and their dimensions were 5”x2”x2”. Here, there is a course of dealing under the prior contract. Under that contract, the brickmaker consistently delivered 5”x2”x2” red bricks over time. Accordingly, this course of dealing is relevant to interpret the color and dimensions of the bricks under the current contract. [ See 1 Hawkland UCC Series § 1-303:3, Westlaw (database updated June 2021).] (2) A developer contracted with a brickmaker to purchase a specified quantity of bricks at a stated price. The contract did not articulate the bricks’ color or size. In the ensuing months, the brickmaker consistently delivered red 5”x2”x2” bricks each month, and the developer accepted them without objection and used them in his various projects. Here, there is a course of performance relevant to interpret the required color and size of the bricks in the current contract. Multiple times, the brickmaker delivered bricks of the same color and size, and the developer infallibly accepted them. [ See 1 Hawkland UCC Series § 1-303:3, Westlaw (database updated June 2021).] Compare : A developer contracted with a brickmaker to purchase a specified quantity of bricks at a stated price. The contract did not articulate the bricks’ color or size. Several years before, these same parties entered a similar contract. Under the prior contract, the brickmaker made a single delivery of red 5”x2”x2” bricks. Here, there is no course of dealing. A course of dealing requires a sequence of conduct, but under the prior contract, there was only one delivery. Even so, this isolated act may offer insight as to the color and size of bricks the parties contemplated for the current contract. Thus, a court could consider this singular delivery in interpreting the current agreement, provided that doing so would not run afoul of the parol-evidence rule or some other applicable doctrine. [ See 1 Hawkland UCC Series § 1-303:3, Westlaw (database updated June 2021).]
c. Relevance of Course of Performance and Course of Dealing in Interpreting a
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