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RBC NICE BEARINGS, INC., ET AL. v. SKF USA, INC.

(SC 19253)

Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.

Argued January 5—officially released September 22, 2015

David Richman, pro hac vice, with whom were Matthew D. Janssen, Robert B. Flynn and, on the brief,

Steven J. Zakrzewski, for the appellant (defendant).

Kim E. Rinehart, with whom were Tadhg A.J. Dooley

and, on the brief, Joseph W. Martini and Matthew C.

Brown, for the appellees (plaintiffs).
Opinion

ESPINOSA, J. This appeal arises from a dispute over

a contract for the sale of goods. The plaintiffs, RBC

Nice Bearings, Inc., Roller Bearing Company of

America, Inc., and Roller Bearing Company of America,

Inc., doing business as Nice Ball Bearings, Inc., manufacture industrial ball bearings. They appealed to the

Appellate Court from the judgment of the trial court,

which had denied the plaintiffs’ claim for contractual

damages on the basis of its finding that the plaintiffs

had waived a contractual requirement that the defendant, SKF USA, Inc., a distributor, purchase a minimum

dollar value of bearings from the plaintiffs each year.

See RBC Nice Bearings, Inc. v. SKF USA, Inc., 146

Conn. App. 288, 294, 78 A.3d 195 (2013). The Appellate

Court reversed the trial court’s judgment, concluding

that, even if there was sufficient evidence to support

a finding that the plaintiffs had waived the minimum

purchase requirement as to certain years of the contract, the trial court’s finding that the waiver continued

into subsequent contract years was clearly erroneous.

Id., 310–11. We subsequently granted the defendant’s

petition for certification to appeal, limited to the following questions: (1) ‘‘Did the Appellate Court properly

determine that the judgment of the trial court should

be reversed or did it substitute its judgment for that of

the trial court when it determined that the conduct of

the parties did not give rise to a waiver of the minimum

purchase requirement?’’; and (2) ‘‘Did the Appellate

Court properly determine that the trial court incorrectly

decided that the [plaintiffs] failed to retract [their]

waiver of [the defendant’s] minimum purchase requirement . . . ?’’ RBC Nice Bearings, Inc. v. SKF USA,

Inc., 310Conn. 962, 963, 83 A.3d 345 (2013). With respect

to the second certified question, we conclude that certification was improvidently granted.1 With respect to the

first certified question, we conclude that the record

contained sufficient evidence to support the trial court’s

finding that the plaintiffs waived the minimum purchase

requirement on a continuing basis. Accordingly, we

reverse in part the judgment of the Appellate Court.2

The decision of the Appellate Court, as supplemented

by the record, reveals the following factual background

and procedural history. The defendant owned Nice Ball

Bearings, Inc. (Nice), producer of the oldest line of ball

bearings manufactured in the United States, until 1997,

when it sold the product line and associated manufacturing assets to the plaintiffs. RBC Nice Bearings, Inc.

v. SKF USA, Inc., supra, 146 Conn. App. 291. ‘‘The

parties simultaneously executed a ‘Sales and Supply

Agreement’ (1997 agreement) through which the defendant became the plaintiffs’ exclusive distributor for certain Nice products [to certain aftermarket customers].

The 1997 agreement provided for a term of eight years

and required that the defendant expend, at a minimum,
$9 million for the purchase of Nice products from the

plaintiffs each year.’’ Id.

Although the defendant failed to purchase the contractual minimum during the first three years of the

1997 agreement, the plaintiffs did not demand compliance with the minimum purchase requirement, nor did

they take any steps to challenge the defendant’s failure

to comply with that requirement. Id. Rather, on July

31, 2000, the parties negotiated a new sales and supply

agreement to reflect what they agreed were changed

market realities (2000 agreement). Id. This 2000

agreement superseded the 1997 agreement. Id. It

extended the term of the parties’ exclusive supply relationship through the end of 2008, while lowering the

minimum purchase requirement by providing that the

defendant was required to buy not less than $6 million

per year of Nice products. Id. The 2000 agreement also

contained an adjustment clause that allowed for future

increases in the minimum annual purchase requirement

to reflect price increases in the marketplace. Id., 291–92.

The new agreement also allowed for downward adjustments in the minimum purchase requirement under certain exceptional circumstances outlined in the

agreement. Id., 292.

Each contract year was designated to run from March

1 to the end of the following February.3

Id. The 2000

agreement provided that, if a deficit remained after the

close of a given contract year, the defendant could

designate a portion of its March sales during the following yeartoward making up the shortfall. Id. In any event,

the defendant would be required to purchase enough

Nice product to make up the shortfall by April 30 of the

following year. Id. The 2000 agreement also provided,

however, that, upon the expiration ortermination of the

agreement, the plaintiffs were obligated to repurchase

from the defendant all salable Nice products in the

defendant’s inventory. Finally, the 2000 agreement

retained the defendant’s exclusive distributorship,

under which it held exclusive rights to sell Nice products to certain industrial aftermarket customers. Id.

During the first year of the 2000 agreement, the defendant purchased the required amount of bearings from

the plaintiffs. Id. Although its purchases in the second

contract year fell short of the $6 million minimum, this

shortfall was contractually excused because the terrorist attacks of September 11, 2001, resulted in a significant falloff in demand for industrial bearings in the

second half of the contract year.

For reasons that are disputed by the parties, the

defendant was unable to satisfy its minimum purchase

requirements during the third through sixth years of the

2000 agreement. The shortfalls amounted to $221,584 in

the year ending February 28, 2003; $1,810,638 in the

year ending February 29, 2004; $2,150,515 in the year

ending February 28, 2005; and approximately $2 million
in the year ending February 28, 2006.

In the third through fifth years of the 2000 agreement,

the plaintiffs, as they had under the 1997 agreement,

continued to perform under the contract despite the

defendant’s repeated failure to meet its contractual obligations. They indicated their acceptance of the defendant’s deficient performance, and they forbore from

demanding compliance with the minimum purchase

requirement, invoicing the defendant for the shortfalls,

or taking any legal action to enforce their contractual

rights. Instead, each year, while continuing to remind

the defendant of its contractual obligations, the plaintiffs negotiated with the defendant a purchase requirement that the defendant believed the marketreasonably

could bear. During this period, in the interest of maintaining a solid business relationship between the parties, the defendant also overlooked or tolerated various

deviations by the plaintiffs from their contractual

requirements. For example, the defendant allowed the

plaintiffs to fill its orders at a fill rate lower than provided for in the 2000 agreement, and also to increase

prices earlier than the agreement permitted.

The plaintiffs adopted a different strategy, however,

midway through the sixth contract year, which began

on March 1, 2005. The plaintiffs had, for some time,

been exploring the possibility of terminating the 2000

agreement with the defendant, cutting out the middleman, and taking over direct-to-market distribution of

Nice bearings. The plaintiffs never revealed these plans

to the defendant. Their internal target date for the transition was the end of 2005. Accordingly, in July, 2005,

Michael Hartnett, the plaintiffs’ president and chief

executive officer, instructed Bruce Whipple, his director of business development, as follows: ‘‘I want to run

Nice at a rate this year that does not create a major

inventory hangover problem [and] I don’t want to end

the contract this year. Play nice! But let’s reserve our

claim.’’ (Emphasis in original.)

Pursuant to this new strategy, on August 10, 2005,

the plaintiffs presented the defendant with a $1.6 million

shortfall invoice for the fifth contract year. Still, despite

the defendant’s failure to make up the shortfall, the

plaintiffs continued to sell Nice bearings to the defendant under the contract through the end of the sixth

contract year on February 28, 2006. When the defendant

again failed to purchase the contractual minimum by

the end of March, 2006, the plaintiffs issued a shortfall

invoice for the sixth contract year. RBC Nice Bearings,

Inc. v. SKF USA,Inc., supra, 146Conn. App. 302. Finally,

in June, 2006, the plaintiffs unilaterally terminated the

2000 agreement.

‘‘On June 22, 2006, the plaintiffs commenced this

action against the defendant for [among other things]

failure to meet its contractual obligations under the

2000 agreement in the fifth and sixth contract years
and for the anticipatory breach of contract in years

seven through nine. . . .

4

In [a] counterclaim, the defendant alleged breach of contract, tortious interference

with contractual relations and prospective business

relations, unjust enrichment, promissory estoppel, and

violations of [the Connecticut Unfair Trade Practices

Act, General Statutes § 42-110a et seq.].’’ (Footnote

added.) Id., 293.

‘‘After a trial to the court [Miller, J.], the court issued

a memorandum of decision in which it ruled in favor

of the defendant on the plaintiffs’ claims and in favor

of the plaintiffs on the defendant’s counterclaims. The

court concluded that the evidence presented clearly

demonstrated that the 2000 agreement had been modified by the conduct of the parties, who for most of the

contract period did not follow the annual sales requirements set forth therein, and instead negotiated mutually

acceptable, annual purchase volumes based on the realities of the market and on their business capacities.

. . . [In the alternative, the] court found that for the

fourth and fifth contract years, the plaintiffs . . .

waived their right to enforce the minimum purchase

requirement in the 2000 agreement . . . .’’ (Internal

quotation marks omitted.) Id., 293–94. These conclusions were based, in part, on the court’s findings that:

(1) the testimony of the defendant was more credible

than that of the plaintiffs; and (2) there was ‘‘close to

overwhelming’’ evidence that the plaintiffs merely used

the defendant’s contractual shortfalls as a pretext to

terminate the agreement once they were ready to

assume direct distribution of the Nice product line.

The trial ‘‘court found these conclusions dispositive

of all of the plaintiffs’ claims against the defendant.’’

RBC Nice Bearings, Inc. v. SKF USA, Inc., supra, 146

Conn. App. 294. As to the defendant’s counterclaim that

the plaintiffs had violated the exclusive sales clause of

the 2000 agreement, although the court found that the

plaintiffs had breached the agreement, it denied the

defendant any relief on the grounds that: (1) the defendant had failed to prove its counterclaim damages with

sufficient certainty; and (2) ‘‘the amount in dispute did

not become a significant issue between the defendant

and the [plaintiffs] until litigation was being contemplated.’’ (Internal quotation marks omitted.) Id., 312.

On appeal, the Appellate Courtreversed the judgment

of the trial court as to both the plaintiffs’ breach of

contract claims and the defendant’s counterclaim. Id.,

316. With respect to the plaintiffs’ claims, the Appellate

Court concluded that, as a matter of law, any modification of the agreement by the parties’ course of performance was barred by a provision of the 2000 agreement

requiring that any modification ofits terms be in writing.

Id., 296, 300–301. The AppellateCourtfurther concluded

that ‘‘there were no signed writings from which the

[trial] court could properly conclude that the plaintiffs
had agreed to modify the terms of the 2000 agreement.’’5

Id., 302. In addition, the Appellate Court concluded that

the trial court’s finding that the plaintiffs waived the

minimum purchase requirement in the sixth contract

year was clearly erroneous. Id., 311. Accordingly, it

remanded the case for a new trial. Id., 316. With respect

to the defendant’s counterclaim, the court concluded

that the defendant’s damages could be calculated without speculation, and that the defendant’s motive for

pursuing the claim was irrelevant. Id., 314–15. Accordingly, the Appellate Courtremanded the case with direction to render judgment in favor of the defendant on

its counterclaim and for further proceedings to determine the amount of damages to which the defendant

was entitled. Id., 316. The sole issue we consider in this

certified appeal is whetherthe Appellate Court properly

concluded that the trial court’s finding of a continuing

waiver of the minimum purchase requirement as to the

sixth contract year and the executory portions of the

agreement was clearly erroneous. Additional facts will

be set forth as necessary.

We begin our analysis with a brief overview of the

relevant legal principles. We then consider whether the

trial court’s findings as to waiver in the third through

fifth contract years were clearly erroneous, and, finally,

whether its finding of continuing waiver as to the sixth

and subsequent contract years was clearly erroneous.

‘‘Waiver is a question of fact. . . . [When] the factual

basis of the [trial] court’s decision is challenged we

must determine whether the facts set out in the memorandum of decision are supported by the evidence or

whether, in light of the evidence and the pleadings in

the whole record, those facts are clearly erroneous.

. . . [T]he trial court’s conclusions must stand unless

they are legally or logically inconsistent with the facts

found or unless they involve the application of some

erroneous rule of law material to the case.’’ (Citations

omitted; internal quotation marks omitted.) AFSCME,

Council 4, Local 704 v. Dept. of Public Health, 272

Conn. 617, 622–23, 866 A.2d 582 (2005).

Contracts for the sale of goods are governed by the

Uniform Commercial Code (UCC), which Connecticut

has codified at General Statutes § 42a-1-101 et seq.

Although the UCC contains numerous references to the

‘‘waiver’’ of contractual requirements, it never defines

the term waiver; see General Statutes § 42a-2-103 (definitions and index of definitions in article 2 of UCC);

Dynamic Machine Works, Inc. v. Machine & Electrical

Consultants,Inc., 352 F. Supp. 2d 83, 88 (D. Mass. 2005);

nor does it set forth standards for determining whether

a party to a contract has waived its contractual rights.

To determine the existence and contours of a purported

waiver, therefore, we must seek guidance from our

state’s common law of contract, as supplemented by

the UCC. See General Statutes § 42a-1-103 (b); Conn.
Gen. Stat. Ann. (West 2009) § 42a-1-103, comment (2),

pp. 21–22; Boston Helicopter Charter, Inc. v. Agusta

Aviation Corp., 767 F. Supp. 363, 372 (D. Mass. 1991).

Waiver is defined generally as ‘‘the voluntary relinquishment of a known right.’’ MacKay v. Aetna Life

Ins. Co., 118 Conn. 538, 547, 173 A. 783 (1934). In the

contract context, waiver refers to ‘‘the excuse of the

nonoccurrence of or a delay in the occurrence of a

condition of a duty.’’ 2 E. Farnsworth, Contracts (3d

Ed. 2004) § 8.5, p. 447. ‘‘Waiver does not have to be

express, but may consist of acts or conduct from which

waiver may be implied. . . . [W]aiver may be inferred

from the circumstances if it is reasonable to do so.’’

(Internal quotation marks omitted.) AFSCME, Council

4, Local 704 v. Dept. of Public Health, supra, 272 Conn.

623. Accordingly, although an ‘‘[i]ntention to relinquish

must appear . . . acts and conduct inconsistent with

[the] intention to terminate the contract are sufficient.’’

(Internal quotation marks omitted.) MacKay v. Aetna

Life Ins. Co., supra, 547–48.

With respect to contracts governed by the UCC, General Statutes § 42a-1-303 (f) provides in relevant part

that ‘‘a course of performance is relevant to show a

waiver . . . of any term inconsistent with the course

of performance.’’6

Indeed, ‘‘it is a settled principle of

contract law that a party to an executory bilateral contract waives a material breach by the other party if he

continues the business relationship, and accepts future

performance without some warning that the contract

is at an end.’’ (Internal quotation marks omitted.) Apex

Pool Equipment Corp. v. Lee, 419 F.2d 556, 561 (2d

Cir. 1969); see also 2A L. Lawrence, Anderson on the

Uniform Commercial Code (3d Ed. 2008) § 2-209:99, p.

75; 13 R. Lord, Williston on Contracts (4th Ed. 2000)

§ 39.31, pp. 637–42.

Once it is determined that an obligee has waived the

performance of one or more of the obligor’s contractual

duties, the question arises as to the scope and extent

of that waiver. See 2A L. Lawrence, supra, § 2-209:56,

p. 53. For example, when a contract provides that an

obligor will satisfy its contractual duties in instalments,

or provides for repeated occasions of performance, the

factthat the obligee waives the obligor’s noncompliance

as to a single instalment, or on one particular occasion,

does not necessarily evidence an intent to waive noncompliance as to the obligor’s future, executory obligations. See Dallas Aerospace, Inc. v. CIS Air Corp., 352

F.3d 775, 783 (2d Cir. 2003); 2A L. Lawrence, supra, § 2-

209:57, p. 54. Rather, for a course of performance to

give rise to a continuing waiver, there must be ‘‘repeated

occasions for performance and [the] opportunity for

objection . . . .’’ (Emphasis omitted; internal quotation marks omitted.) Dallas Aerospace, Inc. v. CIS Air

Corp., supra, 783; see, e.g., Bradford Novelty Co. v.

Technomatic, Inc., 142 Conn. 166, 170–71, 112 A.2d 214
(1955) (by repeatedly acquiescing in previous delays,

obligee waived its right to insist on strict compliance

with contractual provisions as to time of performance);

Remington Arms Union Metallic Cartridge Co. v.

Gaynor Mfg. Co., 98 Conn. 721, 731, 120 A. 572 (1923)

(by accepting noncompliant deliveries for fourteen

months, obligee abandoned right to peremptorily put

end to further performance by obligor without first

giving obligor reasonable notice of its intention to

demand strict performance in future); Bronson v. Leibold, 87 Conn. 293, 297, 87 A. 979 (1913) (by accepting

multiple noncompliant payments, obligee waived right

to insist on forfeiture for noncompliance). Whether the

obligee’s repeated waiver of a contractual right creates

a continuing waiver is determined by an objective standard of whether a reasonable observer would conclude

that the obligee no longer intended to insist on strict

compliance. See 2 Restatement (Second), Contracts

§ 247, comment (a), p. 266 (1981); 13 R. Lord, supra,

§ 39:22, p. 590; 2A L. Lawrence, supra, § 2-209:98, p. 74.

Finally, waiver of a contractual requirement differs

from a contractual modification in two important

respects. First, ‘‘[w]hile a waiver may be effectuated by

one party, a modification is the result of the bilateral

action of both parties to the . . . transaction.’’ (Internal quotation marks omitted.) Dynamic Machine

Works, Inc. v. Machine & Electrical Consultants, Inc.,

444 Mass. 768, 771–72, 831 N.E.2d 875 (2005); 2A L.

Lawrence, supra, § 2-209:50, p. 51. Second, and relatedly, whereas the modification of a contract may not

be revoked without the consent of both parties, the

obligee may, under certain circumstances, unilaterally

retract its waiver of a contractual requirement. See

Dynamic Machine Works, Inc. v. Machine & Electrical

Consultants, Inc., supra, 444 Mass. 772; Nassau Trust

Co. v. Montrose Concrete Products Corp., 56 N.Y.2d 175,

184, 436 N.E.2d 1265, 451 N.Y.S.2d 663, appeal denied,

57 N.Y.2d 674 (1982). Specifically, in contracts governed

by the UCC, ‘‘[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 of any

term waived, unless the retraction would be unjust in

view of a material change of position in reliance on

the waiver.’’ General Statutes § 42a-2-209 (5). This is

consistent with our state’s common law, which provides

that an obligee may not ‘‘peremptorily put an end to

further performance by the [obligor on the basis of

the obligor’s continued noncompliance with the waived

contractual provisions] without first giving the [obligor]

reasonable notice of its intention to demand a strict

performance in the future.’’ Remington Arms Union

Metallic Cartridge Co. v. Gaynor Mfg. Co., supra, 98

Conn. 731; see also Bradford Novelty Co. v. Technomatic, Inc., supra, 142 Conn. 171; 2 Restatement (Second), supra, § 247, comment (b), p. 267.
With these legal principles in mind, we turn to the

present case and, specifically, to the conclusion of the

Appellate Court that the trial court’s finding that the

plaintiffs waived the minimum purchase requirement

as to the sixth contract year was clearly erroneous.

Because the issue is one of continuing waiver, before

we address the sixth and subsequent contract years we

first review the trial court’s finding that the plaintiffs

waived the minimum annual purchase requirement in

previous contract years.

The trial court’s findings in this respect are not as

clear as they might be. In its memorandum of decision,

the court found that the plaintiffs waived compliance

with respect to the fourth and fifth contract years. In

its December 22, 2011 articulation, the court corrected

this finding and clarified that the plaintiffs waived the

requirement as to the fifth and sixth contract years, as

well as ‘‘any yearthereafter.’’ At that time, the court also

articulated that ‘‘[the plaintiffs’] waiver[of the minimum

purchase requirements] extended to the entire period,

up to June 21, 2006, and would also have extended

throughout the remainder of the contract . . . .’’ In a

subsequent reply to the defendant’s request for further

articulation, however, the court stated that ‘‘the correction set forth in its December 22, 2011 articulation

should not have been included therein,’’ and reiterated

its initial finding that ‘‘the conduct that gave rise to

waiver occurred in the fourth and fifth years of the

contract.’’ RBC Nice Bearings, Inc. v. SKF USA, Inc.,

supra, 146 Conn. App. 295.

There is no dispute that the trial court ultimately

found that the plaintiffs intended to and did waive the

minimum purchase requirement at least with respect

to the fourth and fifth contract years. There is ample

evidence in the record to support this finding, and neither party challenges it on appeal.7 At a minimum, then,

we must assume that the plaintiffs waived the relevant

contractual requirements for two consecutive years

leading up to the sixth contract year.

The parties disagree as to whether the trial court also

found waiver in the third contract year. The plaintiffs

contend that the trial court repeatedly declined the

defendant’s request that it find that they waived the

minimum purchase requirement for that year. They further argue that any finding of waiver in year three contained in the court’s December 22, 2011 articulation

was without support in the record and was retracted by

its subsequent clarification. The defendant, by contrast,

relies on the trial court’s statement in its December 22,

2011 articulation that the waiver covered the entire

period up to June 21, 2006, and it contends that there

is adequate evidence in the record to support a finding

of waiver as to the third contract year. We agree with

the defendant.
Although it is not entirely clear how much of the

court’s December 22, 2011 articulation it sought to

revoke through its reply to the defendant’s request for

further articulation, the Appellate Court concluded, and

we agree, that there is no indication that the trial court

intended to alter or withdraw its finding that the plaintiffs’ waiver applied to the entire period during which

the parties had conducted business under the contract,

and would have extended to the remaining years of the

contract as well. See id., 306 and n.11; see also Abington

Ltd. Partnership v. Heublein, 257 Conn. 570, 586 n.29,

778 A.2d 885 (2001) (this court construes ambiguous

memorandum of decision to support judgment). We

have no reason to gainsay this finding. The record contains evidence that:(1)the parties negotiated a mutually

agreeable sales figure for the third contract year; (2)

the plaintiffs wrote the defendant at the close of the

third contract year to confirm that, notwithstanding

the contractual shortfall, ‘‘the contract has been met

[through] February 2003’’;(3)two of the plaintiffs’ executives opted to accept the defendant’s performance and

to forbear from issuing a shortfall notice for that year;

and (4) the plaintiffs never invoiced the defendant for

the year three shortfall.

We also are not persuaded by the plaintiffs’ suggestion on appeal that they could not have waived the

requirement for the third contract year because the

shortfall to which they agreed, $221,584, was ‘‘de minimus . . . .’’ Neither the record nor the law supports

this argument. At trial, the plaintiffs took the position

that the defendant’s performance in the third year was

‘‘not in compliance’’ with their contractual obligations.

Moreover, even if the third year shortfall were de minimus, that fact would ‘‘[provide] only the motive for the

waiver and [would] not vitiate the waiver itself.’’ Getty

Terminals Corp. v. Coastal Oil New England, Inc., 995

F.2d 372, 375 (2d Cir. 1993).

Accordingly, we conclude that it was not clearly erroneous for the trial court to find that the plaintiffs had

waived the minimum annual purchase requirement for

three consecutive years prior to the sixth contract year.

We also note that the plaintiffs conceded at trial that,

for all three years of the predecessor 1997 agreement,

the defendant failed to satisfy its minimum purchase

requirements and the plaintiffs opted to continue doing

business with the defendant and to forbear from issuing

any shortfall invoice. There was evidence in the record,

then, to support a finding that the plaintiffs waived the

defendant’s minimum annual purchase requirement in

six of the eight years leading up to the sixth year of

the 2000 agreement.

We now turn to the central question presented by

this appeal, namely, whether, in light of the parties’

course of performance under the 2000 agreement and

their course of dealing under the previous 1997
agreement, it was clearly erroneous forthe trial court to

find that the plaintiffs’ conduct gave rise to a continuing

waiver that extended into the sixth year of the 2000

agreement. We begin by emphasizing that the plaintiffs

bear a heavy burden in seeking to establish that the

trial court’s finding of continuing waiver was clearly

erroneous. We also emphasize that the relevant question is not whether the plaintiffs subjectively intended

to waive their rights in the sixth contract year, but,

rather, whether a reasonable person in the position of

the defendant would have interpreted the plaintiffs’

course of conduct, in that year or previous years, to

mean that the plaintiffs would not require strict compliance in the sixth year. See 2A L. Lawrence, supra, § 2-

209:98, p. 74. Accordingly, the plaintiffs’ argument that

there is no evidence that they actually intended to waive

the contractual requirements past the fifth year is

unavailing.

In reviewing the trial court’s findings, the Appellate

Court recognized that the trial court had found that the

parties’ course of performance gave rise to a ‘‘permanent waiver’’ of the plaintiffs’ right to enforce the minimum purchase requirement. RBC Nice Bearings, Inc. v.

SKF USA,Inc., supra, 146Conn. App. 306. The Appellate

Court did not appear to find fault with that finding.8

Nevertheless, the Appellate Court proceeded to consider whether there was sufficient evidence to find that

the plaintiffs waived their contractualrights in the sixth

contract year. Id., 306–307. In that regard the Appellate

Court went astray. Once a continuing waiver is established, the obligee need not repeatedly indicate anew

its intent to waive its rights. Rather, the waiver persists,

and the onus falls on the obligee to demonstrate that

it retracted its waiver as to the executory portion of

the contract. Accordingly, the Appellate Court should

have inquired not into whetherthere was fresh evidence

of waiver in the sixth contract year but, rather, whether

there was evidence sufficient to support the trial court’s

finding of continuing waiver and, if so, whether the

plaintiffs executed an effective retraction of that waiver

prior to the sixth year.

As we have discussed, there was evidence sufficient

to support a finding of waiver in six of the previous

eight years of the parties’ business relationship and,

indeed, the plaintiffs have essentially conceded that

they waived their rights as to five of those six years.

Although the parties have not brought to our attention

any Connecticut cases on point, and our own independent review has revealed none, courts in other jurisdictions regularly have found—or upheld findings of—

continuing waiver of contractual rights where an obligee has acquiesced in between two and six instances of

noncompliant performance. See, e.g., Getty Terminals

Corp. v. Coastal Oil New England, Inc., supra, 995 F.2d

375 (failure to bill for taxes and licensing fees for four

years gave rise to continuing waiver requiring retrac-
tion); Apex Pool Equipment Corp. v. Lee, supra, 419

F.2d 559–64 (retraction of waiver was required where

seller allowed buyer to purchase less than contractual

minimum in first year of contract and for first several

months of second year); Ada Liss Group (2003) Ltd.

v. Sara Lee Corp., Docket No. 1:06CV610 (NCT), 2014

WL 4370660, *8 (M.D.N.C. August 28, 2014) (seller’s

acquiescence in distributor’s failure to provide annual

and quarterly reports for several years resulted in

waiver requiring retraction); Gillani Consulting, Inc.

v. Daewoo Heavy Industries America Corp., Docket

No. C05-0823-JCC, 2006 WL 3545467, *11 (W.D. Wn.

December 7, 2006) (waiver of transfer fees in 1997 and

2000 estopped software licensor from collecting fees

for 2001 transfer), aff’d, 300 Fed. Appx. 466 (9th Cir.

2008); Burger King Corp. v. Family Dining, Inc., 426

F. Supp. 485, 493 (E.D. Pa.) (where franchisor allowed

franchisee to retain franchise after failing to meet contractual deadlines in contract years four and five,

franchisor could not enforce deadlines strictly in years

nine and ten without prior notice), aff’d, 566 F.2d 1168

(3d Cir. 1977); In re Humboldt Fir, Inc., 426 F. Supp.

292, 297–98 (N.D. Cal. 1977) (granting of two one year

extensions resulted in waiver requiring retraction

before contractual deadline could be reinstated), aff’d

sub nom. United States v. Humboldt Fir, Inc., 625 F.2d

330 (9th Cir. 1980); Duncan v. Malcomb, 234 Ark. 146,

148–49, 351 S.W.2d 419 (1961) (lessor’s acceptance of

two of lessee’s late annual rental payments held sufficient to establish continuing course of conduct); BioTech Pharmacal, Inc. v. International Business Connections, LLC, 86 Ark. App. 220, 228–29, 184 S.W.3d

447 (2004) (affirming finding of waiver where buyer

received and paid for several noncompliant orders without protest or complaint); John B. Robeson Associates,

Inc. v. Gardens of Faith, Inc., 226 Md. 215, 222–23, 172

A.2d 529 (1961) (by accepting sales below minimum

requirement for two consecutive quarters, cemetery

owner relinquished its right to terminate contract

because of such defaults); Farmers Elevator Co. of

Reserve v. Anderson, 170 Mont. 175, 180, 552 P.2d 63

(1976) (acceptance of multiple noncompliant deliveries

over two month period established continuing course

of conduct); Southwest Industrial Import & Export,

Inc. v. Borneo Sumatra Trading Co., 666 S.W.2d 625,

629 (Tex. App. 1984) (buyer waived contractual rights

by accepting three deliveries of wire at price above

contracted rate); see also annot., 31 A.L.R.2d 377, § 16

(1953) (acceptance of several late instalment payments,

consistent with settled course of dealing, precludes

summary termination for subsequent defaults without

prior notice).

The parties’ undisputed course of performance and

course of dealing, then, adequately support the trial

court’s finding of continuing waiver. In light of the fact

that the plaintiffs previously had accommodated the
defendant’s deficient performance each time the defendant was unable to satisfy its contractual requirements,

a course of conduct that spanned six of the eight years

during which the parties did business together, it was

not unreasonable for the trial court to credit testimony

by the defendant’s employees that the plaintiffs had

led the defendant to believe that it could continue to

purchase based on the realities of the marketplace.

Trial testimony from executives of both parties supports the trial court’s finding in this regard. The defendant’s vice president of logistics, Bonita J. Thomerson,

testified that the plaintiffs’ executive vice president,

Michael S. Gostomski, told her late in the fourth contract year that ‘‘he thought that $5 million would be

something that we could even look at continuing to do

forward, that that was a reasonable volume to consider.’’ By the sixth year, she indicated, the defendant

was ‘‘operating under the premise that we had

agreements on what our purchases would be, and they

had agreed with them . . . .’’ The trial court expressly

credited Thomerson’s testimony. Indeed, Gostomski

himself acknowledged that, after the second contract

year, ‘‘I negotiated—I’ll use the word ‘discussed,’ and

went through various things with [employees of the

defendant], but we would always go back and forth and

come to a number that we would both agree upon.’’

In addition, it is noteworthy that the trial court also

found that the parties, through their course of performance, attempted to modify the 2000 agreement so as

to replace the minimum purchase requirement with a

purchase requirement to be negotiated annually based

on prevailing market conditions and the defendant’s

reasonably foreseeable business needs. The Appellate

Court properly rejected this finding, concluding, as a

matter of law, that any modification of the 2000

agreement by the parties’ course of performance was

barred by the contractual provision requiring that modifications be in writing. RBC Nice Bearings, Inc. v. SKF

USA,Inc., supra, 146 Conn. App. 300–301. Nevertheless,

the trial court’s finding that both parties intended permanently to modify their agreement is not without relevance. If, as the trial court found, the plaintiffs intended

to permanently eliminate the minimum annual purchase

requirement, then, it follows, they necessarily intended

to waive that requirement on a continuing basis, and

not simply for individual contract years. See Wisconsin

Knife Works v. National Metal Crafters, 781 F.2d 1280,

1293–94 (7th Cir. 1986) (Easterbrook, J., dissenting);

see also 2A L. Lawrence, supra, §§ 2-209:51 and 2-

209:124, pp. 52, 83–84 (waiver can be established by

lower demonstration of assent than required to prove

modification).9

We also agree with the defendant that the Appellate

Court improperly substituted its own judgment for that

of the trial court when it concluded that the plaintiffs
could not have waived their contractual rights as to

the sixth year. The Appellate Court, in reaching that

conclusion, alluded to ‘‘evidence . . . that the defendant was not operating under the impression that the

plaintiffs had relinquished their contractual rights.’’

RBC Nice Bearings, Inc. v. SKF USA, Inc., supra, 146

Conn. App. 307. We assume that the Appellate Court’s

reference is to: (1) internal e-mails sent by officers of

the defendant during the sixth year reminding their

sales and marketing personnel of the $7.1 million minimum sales requirement and urging those personnel to

promote Nice products so as to meet the contractual

requirement; (2) testimony by the plaintiffs, as well as

an e-mail from an officer of the defendant, both indicating that, late in the sixth contract year, the parties

discussed the possibility of converting the agreement

to a requirements contract; and (3) evidence that the

plaintiffs continued to remind the defendant of its contractual obligations during the sixth year. The plaintiffs

contend that the defendant’s employees would not have

prodded their sales team to meet the minimum sales

requirement, nor would they have sought to modify or

eliminate that requirement, if they believed that the

plaintiffs already had permanently waived it, and, in

any event, they could not reasonably have reached that

conclusion in light of the plaintiffs’ frequent suggestions

to the contrary.

None of the evidence upon which the Appellate Court

relied, however, is incompatible with a finding of

waiver. First, with respect to the defendant’s internal

e-mails to its sales staff, the defendant contends that,

even though it believed heading into the sixth contract

year that the plaintiffs would continue to accept purchases below the contractual minimum, its executives

sought in good faith to maximize those purchases, in

part by continuing to encourage its sales staff to try to

meet the original contract targets. There was testimony

at trial in support of this interpretation of the e-mails,

and the trial court was free to credit that testimony.

Second, with respect to the parties’ conversations

regarding a potential transition to a requirements contract, we fail to understand how such conversations

are incompatible with a finding that the plaintiffs had

waived the minimum purchase requirement on a continuing basis. The defendant’s view of the parties’ relationship, which the trial court credited, is that, rather than

insisting that the defendant purchase the contractual

minimum, the plaintiffs opened negotiations each year

by pressing forthat minimum sales figure but ultimately

‘‘back[ed] off’’ to a sales level that the defendant thought

the market reasonably could bear. Nevertheless, the

plaintiffs continued to press the defendant throughout

each year to purchase as many Nice products as possible and, atthe very least, to meetits negotiated purchase

commitment. Under a traditional requirements contract, by contrast, there would be no need for a conten-
tious annual negotiation process, nor would the

defendant have been under constant pressure to attain a

certain sales target. Rather, the defendant simply would

have committed to obtaining any industrial bearings

similar in design to Nice bearings that it required from

the plaintiffs, rather than from other vendors. See

Black’s Law Dictionary (9th Ed. 2009) (defining

‘‘requirements contract’’ as one in which ‘‘a buyer promises to buy and a sellerto supply allthe goods or services

that a buyer needs during a specified period’’ and noting

that such contract ‘‘assures the buyer of a source for

the period of the contract’’). Accordingly, we perceive

no contradiction in the defendant concluding that the

minimum purchase requirement established by the 2000

agreement had been waived in favor of an annual negotiation process, and that the relationship between the

parties might be made more harmonious—and the possibility of litigation reduced—if they were to enter into

a formal requirements contract.

Third, with respect to the Appellate Court’s conclusion that the plaintiffs could not have waived theirrights

because they ‘‘repeatedly attempted to secure the defendant’s compliance with the minimum purchase requirement during the sixth year’’; RBC Nice Bearings, Inc.

v. SKF USA, Inc., supra, 146 Conn. App. 311; this was

an incorrect statement of the law. In concluding that

the plaintiffs did not waive the minimum purchase

requirement as to the contract year ending February 28,

2006, the Appellate Court emphasized that the plaintiffs:

(1) sent the defendant an invoice forthe unpaid shortfall

from the fifth contract year; id., 308–309; (2) constantly

communicated with the defendant regarding the $7.1

million minimum purchase requirement for the sixth

contract year; id., 309; and (3) expressed ‘‘that they

were very concerned’’; id., 311; about the ‘‘ ‘critical’ ’’

issue of the contractual shortfall. Id., 310–11.

However, the fact that an obligee repeatedly reminds

an obligor of its contractual duties,10 or complains of

the obligor’s noncompliance,11 does not preclude a finding of waiver, when the obligee nevertheless continues

to acquiesce in the obligor’s noncompliance and to perform under the contract. The rule applies with particular force in the present case, where there was evidence

that the plaintiffs gave the defendant intentionally

mixed signals with regard to its minimum purchase

requirement, and where the trial court found that the

plaintiffs always had intended to terminate the contract

prematurely and merely used the shortfall invoices as

a pretext to do so when they decided that the time

was right.

We next consider the plaintiffs’ argument, which the

Appellate Court embraced, that the law should hesitate

to find a continuing waiver in a situation such as this

where one party to a contract makes a good faith effort

to accommodate its partner’s initially unsuccessful
attempts to comply with its contractual obligations,

rather than ‘‘suing at the first sign of breach.’’ To hold

otherwise, the plaintiffs contend, would promote

unnecessary litigation at the expense of cooperation,

and would deprive buyers such as the present defendant

of the benefits of lenience during difficult market conditions. We are not persuaded.

We begin by noting that the narrative according to

which the plaintiffs characterize their business relationship with the defendant—one in which they patiently

tried to help the defendant satisfy its contractual obligations until they finally, reluctantly concluded that the

recalcitrant defendant never would hold up its side of

the bargain—was rejected by the trial court. The trial

court found, instead, that both parties recognized

throughout their relationship that, in light of market

realities, it was in their mutual best interest to align their

sales goals with the defendant’s reasonably foreseeable

business needs, and not to build up excess inventory

that the defendant would be unable to sell and that the

plaintiffs ultimately would have to repurchase under

the terms ofthe 2000 agreement.12 There was substantial

evidence that this understanding changed only after the

plaintiffs determined that it would be more profitable

for them to cultivate their own direct sales force, cut

out the middleman, and terminate the agreement.

Even if the equities favored the plaintiffs, however,

the outcome would be no different. We agree with the

plaintiffs that, in situations where one party to an

agreement finds itself temporarily unable to satisfy its

contractual obligations, but both parties desire to maintain the contract, there must be a mechanism by which

the obligee can accommodate the obligor’s nonperformance—perhaps even repeatedly—without permanently

waiving its contractual rights. The plaintiffs’ solution

is, apparently, to require that the defendant prove by

clear and convincing evidence that the plaintiffs

intended to continue waiving the minimum purchase

requirement past the fifth contract year.13 Under this

standard, even when an obligee’s repeated waiver of a

contractual duty creates in the obligor a reasonable

belief that the obligee no longer intends to insist on

compliance therewith, the obligor could not rely on

that belief in the future, but would have to continually

ascertain whether it remained true.

There are two problems with such a rule. First,

although the plaintiffs may be correct that, under the

UCC, clear and convincing evidence is required to establish a binding oral modification of a written contract;

see 2A L. Lawrence, supra, § 2-209:9, p. 36; it would not

be appropriate to impose that heightened standard of

proof for a waiver. As we have explained, a waiver is

a unilateral decision by an obligee not to insist on strict

compliance with a contractual condition, and its existence and scope are, therefore, defined by the apparent
intent of the obligee. When it is not completely clear

whether an obligee who repeatedly has waived its contractual rights intends to continue waiving those rights,

it would be unreasonable to place the onus of properly

interpreting the obligee’s ambiguous behavior on the

obligor. In the present case, for example, the plaintiffs

repeatedly reminded the defendant of its contractual

obligations and expressed concern over its deficient

performance, but nevertheless continued to do business

with the defendant and to acknowledge that its deficient

performance had satisfied the contractual requirements. Under such circumstances, if the law were to

require that the obligor be absolutely convinced before

it could rely on the obligee’s continued forbearance,

then the benefits of accommodation touted by the plaintiffs would largely disappear.

Second, and relatedly, the rule urged by the plaintiffs

would permit an unscrupulous obligee to ride the fence,

tolerating noncompliance so long as that suits the obligee’s interests but leaving it free to exercise its contractualremedies, without advance notice, wheneverit sees

fit. In fact, there is evidence in the record, and the trial

court appears to have found, that that is precisely what

the plaintiffs did in the present case. In July, 2005, for

example, Hartnett, the plaintiffs’ president and chief

executive officer, instructed his director of business

development to ‘‘[p]lay nice’’ by continuing to conduct

business under the contract for the remainder of the

sixth year, and to sell at a rate that did not result in

the buildup of excess inventory, while at the same time

putting the defendant on notice of its delinquency and

reserving the plaintiffs’ claim. These intentionally

mixed messages left the plaintiffs’ own employees confused as to the plaintiffs’ policy with respect to enforcement of its contractual rights. One expressed that ‘‘we

are getting conflicting signals from the top,’’ while

another requested ‘‘clearer direction on the tone’’ to be

taken in communications with the defendant. If the

plaintiffs’ own officers, who were privy to its secret

plans to take their distribution business direct, were

unsure whether the plaintiffs intended to waive the

minimum purchase requirement for the sixth year, it

is unreasonable to expect the defendant, who had no

knowledge of those plans, to discern when exactly the

plaintiffs intended to change course and begin strictly

enforcing their rights.

How, then, is an obligee to communicate, and its

obligor to understand, that the obligee’s previous willingness to waive a contractual requirement should not

be construed as a continuing waiver? For agreements

governed by the UCC, General Statutes § 42a-1-308 (a)

provides clear guidance: ‘‘A party that, with explicit

reservation of rights, performs or promises performance or assents to performance in a manner

demanded or offered by the other party does not

thereby prejudice the rights reserved. Such words as
‘without prejudice’, ‘under protest’ or the like are sufficient.’’ (Emphasis added.) ‘‘The making of a valid reservation of rights preserves whatever rights the person

then possesses and prevents the loss of those rights by

application of the concepts of waiver . . . . [Specifically, the] right to cancel is not lost by the acceptance

of performance when the aggrieved party has made a

reservation of rights.’’ 1A L. Lawrence, Anderson on

the Uniform Commercial Code (3d 2004) § 1-308:14R,

pp. 1174–75. A reservation of rights pursuant to § 1-

308R of the UCC must be ‘‘ ‘so clearly stated or distinctively set forth that there is no doubt as to its meaning.’ ’’

Id., § 1-308:10R, p. 1173. ‘‘In the absence of [such] an

express reservation, a party may be found to have

waived his or her right to object . . . if that party performs or accepts the performance of the other contracting party.’’ Id., § 1-308:3R, pp. 1170–71; see also id.,

§ 1-308:17R, p. 1175 (failure to reserve rights may bar

assertion of waived right at later date). Moreover,

‘‘[w]hen there is a series of performances by the [obligor], each performance of which involves a breach, the

[obligee] making the reservation of rights should repeat

the reservation for each performance rather than run

the risk of being deemed to have waived his or her right

by subsequently accepting a defective performance or

performing without objection.’’ Id., § 1-308:12R, p. 1174.

The drafters of the UCC, then, made a reasonable determination that the obligee, whose choice it is to enforce

or waive its contractual rights, should bear the risk of

any ambiguity arising from its failure to clearly

announce whether its decision repeatedly to waive

those rights is to be construed as a continuing waiver.

In the present case, if the plaintiffs, when waiving the

minimum purchase requirement as to the third through

fifth contract years, wished to reserve their rights as

to those or subsequent contract years, they had only to

inform the defendant thereof. See, e.g., Olean v. Treglia,

190 Conn. 756, 772–73, 463 A.2d 242 (1983) (plaintiff

declined to exercise option to accelerate indebtedness

at time of sale but expressly reserved right as to future

disposition of property); see also County Fire Door

Corp. v. C. F. Wooding Co., 202 Conn. 277, 289, 520

A.2d 1028 (1987) (noting that ‘‘article 2 [of the UCC;

General Statutes § 42a-2-101 et seq.] urges the contracting parties to engage in a continuing dialogue about

what will constitute acceptable performance of their

sales contract’’ and provides ‘‘a statutory methodology

for the effective communication of objections’’). This

they failed to do. Despite Hartnett’s internal instruction

to ‘‘reserve our claim,’’ there is no evidence that the

plaintiffs’ employees ever communicated to the defendant a clear and unambiguous reservation of rights pursuant to § 42a-1-308. Accordingly, we conclude that the

trial court’s finding that the plaintiffs’ previous waiver

of the minimum purchase requirement extended into

the sixth year and the executory portion of the 2000
agreement was not clearly erroneous.

The judgment of the Appellate Court is reversed with

respect to the plaintiffs’ breach of contract claims, and

the case is remanded to that court with direction to

render judgment affirming the judgment of the trial

court in favor of the defendant on the plaintiffs’ breach

of contract claims and to remand the case to the trial

court for further proceedings on the defendant’s counterclaim.

In this opinion the other justices concurred.

1 Although the parties briefed the issue of retraction before the trial court,

that court did not address the issue in its memorandum of decision. Moreover, the Appellate Court, which concluded that there was no continuing

waiver, had no cause to and did not directly address the question whether

the plaintiffs executed a legally effective retraction of their waiver. On

certification to this court, the plaintiffs—the only party that could benefit

from a finding of retraction—concede that the issue of retraction is not

properly before the court. Accordingly, we decline to address the issue.

2 The Appellate Court also held that the trial court improperly determined

that the defendant was not entitled to damages on its counterclaim. RBC

Nice Bearings, Inc. v. SKF USA, Inc., supra, 146 Conn. App. 311, 314. That

issue is not before us in this certified appeal.

3 The ninth and final year of the agreement was an exception, as it was

to have ended December 31, 2008, rather than February 28, 2009. For the

purpose of clarity in this opinion, we refer to the contract years not by the

calendar year span (e.g., 2000–2001) but, instead, by the annual term of the

contract. For example, the first contract yearran from March 1, 2000 through

February 28, 2001, and the second contract year ran from March 1, 2001

through February 28, 2002.

4 The plaintiffs also alleged breach of the covenant of good faith and fair

dealing, unjust enrichment, trade secret violations, violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., violation

of the Connecticut Unfair Sales Practices Act, General Statutes § 42-115e

et seq., tortious interference with business relations, and usurpation of

corporate opportunity.

5 The defendant does not challenge those conclusions on appeal.

6 The UCC defines a ‘‘ ‘course of performance’ ’’ as ‘‘a sequence of conduct

between the parties to a particular transaction that exists if: (1) [t]he

agreement of the parties with respect to the transaction involves repeated

occasions for performance by a party; and (2) [t]he other party, with knowledge of the nature of the performance and opportunity for objection to it,

accepts the performance or acquiesces in it without objection.’’ General

Statutes § 42a-1-303 (a). The UCC distinguishes between a course of performance, which relates to the parties’ conduct under the contract at issue,

and a course of dealing, which relates to the conduct of the parties during

transactions that occurred prior to the agreement. See General Statutes

§ 42a-1-303 (b); Conn. Gen. Stat. Ann. (West 2009) § 42a-1-303, comment

(2), p. 63.

7 To the extent that the Appellate Court determined that the plaintiffs could

not have waived their rights during this period because they continually

‘‘insist[ed] that the defendant should be purchasing at the minimum purchase

requirement level’’; RBC Nice Bearings, Inc. v. SKF USA, Inc., supra, 146

Conn. App. 306; that determination was incorrect. Although the plaintiffs

at times urged the defendant to purchase the contractual minimum, by

accepting or acquiescing in the defendant’s noncompliant performance and

continuing to perform under the agreement, the plaintiffs failed to insist

on compliance in the legally relevant sense. See MSO, LLC v. DeSimone,

313 Conn. 54, 64, 94 A.3d 1189 (2014).

8 We address hereinafter the Appellate Court’s concern that an obligee’s

attempt to encourage a breaching party to adhere to its contractual obligations ought not be construed as a waiver. See RBC Nice Bearings, Inc. v.

SKF USA, Inc., supra, 146 Conn. App. 307.

9 The Appellate Court also recognized that, under the UCC, ‘‘[a]lthough

course of performance evidence that parties to a contract attempted to

modify their contract may fail for lack of a signed writing in the face of a

written modification clause, such evidence can operate as a waiver.’’ (Internal quotation marks omitted.) RBC Nice Bearings, Inc. v. SKF USA, Inc.,
supra, 146 Conn. App. 305; see General Statutes § 42a-2-209 (4) (‘‘[a]lthough

an attempt at modification or rescission does not satisfy the requirements

of [a signed writing] it can operate as a waiver’’ [emphasis added]). Because

the trial court made an independent finding that the plaintiffs waived the

defendant’s compliance with the minimum annual purchase requirement,

the Appellate Court did not have to resolve a question of first impression

in Connecticut, over which legal scholars and our sister courts have divided,

namely, whether an attempted oral modification barred by a no oral modifications clause automatically functions as a waiver, or does so only under

certain circumstances. Compare Wisconsin Knife Works v. National Metal

Crafters, supra, 781 F.2d 1287 (Posner, J.) (concluding that ‘‘an attempted

modification is effective as a waiver only if there is reliance’’), with id.,

1290–94 (Easterbrook, J., dissenting)(concluding that detrimentalreliance is

notrequired forfailed modification to function as waiver); see also Dynamic

Machine Works, Inc. v. Machine & Electrical Consultants, Inc., supra, 352

F. Supp. 2d 88 (‘‘Section 2-209 of the UCC has been the cause of much

confusion and unpredictability amongst courts and has led to a wealth of

academic analysis. Specifically, judges and scholars alike have had difficulty

in reconciling the five subsections of [§] 2-209 to avoid superfluous and

inconsistent interpretations.’’). For the same reasons, we need not resolve

that question here.

10 See, e.g., Lopez v. Bell, 207 Cal. App. 2d 394, 399, 24 Cal. Rptr. 626 (1962)

(‘‘[T]he mere request for [performance] does not meet the requirement [of]

. . . the giving of written notice [after acceptance of performance] that

strict performance of the contract’s covenants will be necessary in the

future. To be reasonably definite, the notice should recite in substance that

unless [performance is accomplished], far enough in the future to give the

[obligor] reasonable time and opportunity to comply with his [contractual

obligations], the contract will be terminated and forfeiture will take place.’’

[Internal quotation marks omitted.]); Battista v. Savings Bank of Baltimore,

67 Md. App. 257, 271, 507 A.2d 203 (1986) (upholding finding of ongoing

waiver when bank repeatedly sent debtor ‘‘ ‘ten-day letter’ ’’ warning of need

for strict compliance, but failed to repossess car).

11 See Remington Arms Union Metallic Cartridge Co. v. Gaynor Mfg. Co.,

supra, 98 Conn. 732 (‘‘[i]t is of no consequence that the [obligee] protested

against the shortage and delay in deliveries’’); see also BMC Industries,

Inc. v. Barth Industries, Inc., 160 F.3d 1322, 1335 (11th Cir. 1998) (finding

waiver as matter of law when obligee’s executives frequently expressed

concern and disappointment with performance of obligor and implored

obligor to exert every effort to ensure speedy completion of project, but

never declared obligor in default or terminated contract), cert. denied, 526

U.S. 1132, 119 S. Ct. 1807, 143 L. Ed. 2d 1010 (1999); Southwest Industrial

Import & Export, Inc. v. Borneo Sumatra Trading Co., supra, 666 S.W.2d

628–29 (finding waiver, as matter of law, where buyer informed seller that

‘‘ ‘I think this is unreal, unjust,’ ’’ but continued to accept nonconforming

deliveries); 2A L. Lawrence, supra, § 2-209:99, p. 75 (waiver properly found

where buyer asserted that manufacturer’s near doubling of price charged

was unreasonable but agreed to new price); but see 2 Restatement (Second),

supra, § 247, reporter’s note comment (a), p. 268 (raising but not resolving

question whether obligor is justified in assuming that performance is waived

when obligee accepts but consistently complains of nonperformance).

12 We also see no evidence in the record to support the Appellate Court’s

apparent assumption that the plaintiffs continued their relationship with

the defendant ‘‘ ‘only on the assurance of better future performance . . . .’ ’’

RBC Nice Bearings, Inc. v. SKF USA, Inc., supra, 146 Conn. App. 307. On

the contrary, the plaintiffs themselves have complained that the defendant

took a ‘‘ ‘take it or leave it’ ’’ approach with respect to its contractual purchase obligations.

13 We do not read the authorities cited by the plaintiffs to support this rule.