The Twelfth District has just released a thorough and well-reasoned opinion on “no-oral-modifications” clauses and whether such clauses can be waived. The court addresses both UCC 2-209 and the fundamental principles underlying contract law. The verdict? Where a contract has a no-oral-modifications clause, that clause can be waived–and an oral modification can therefore be enforced–only if (1) the parties’ course of performance reflects the fact that a modification was made, and (2) the promisee detrimentally relied on the modification.
The case is Fields Excavating, Inc. v. McWane, Inc., 2009-Ohio-5925 [PDF].
This post was written by Jeffrey M. Nye.
