… Despite the widespread debate over the course of performance doctrine, there are no quantitative empirical studies aimed at directly exposing the parties’ true intention about the doctrine. This Article aims to fill this research void by empirically analyzing actual anti-course of performance clauses in commercial contracts. By examining 1,550 commercial contracts that have been disclosed to the Securities and Exchange Commission, this Article finds that a clear majority (80.06%) of contracts include an anti-course of performance clause. In addition, the results of this study indicate that the anti-course of performance clauses included in the sample contracts are not mere arbitrary boilerplates that were randomly added to the contracts. More specifically, this study found a significant statistical association between the inclusion of an anti-course of performance clause in a contract and the inclusion of a variety of other related clauses, such as anti-waiver and anti-assignment clauses. The theoretical and practical implications of these results are discussed.
Uri Benoliel, The Course Of Performance Doctrine In Commercial Contracts: An Empirical Analysis, 68 DePaul Law Review (2019).