§ 6A-1-303 - Course of performance, course of dealing and usage of trade.
SECTION 6A-1-303
§ 6A-1-303 Course of performance, courseof dealing and usage of trade. – (a) A "course of performance" is a sequence of conduct between the parties to aparticular transaction that exists if:
(1) The agreement of the parties with respect to thetransaction involves repeated occasions for performance by a party; and
(2) The other party, with knowledge of the nature of theperformance and opportunity for objection to it, accepts the performance oracquiesces in it without objection.
(b) A "course of dealing" is a sequence of conduct concerningprevious transactions between the parties to a particular transaction that isfairly to be regarded as establishing a common basis of understanding forinterpreting their expressions and other conduct.
(c) A "usage of trade" is any practice or method of dealinghaving such regularity of observance in a place, vocation, or trade as tojustify an expectation that it will be observed with respect to the transactionin question. The existence and scope of such a usage must be proved as facts.If it is established that such a usage is embodied in a trade code or similarrecord, the interpretation of the record is a question of law.
(d) A course of performance or course of dealing between theparties or usage of trade in the vocation or trade in which they are engaged orof which they are or should be aware is relevant in ascertaining the meaning ofthe parties' agreement, may give particular meaning to specific terms of theagreement, and may supplement or qualify the terms of the agreement. A usage oftrade applicable in the place in which part of the performance under theagreement is to occur may be so utilized as to that part of the performance.
(e) Except as otherwise provided in subsection (f), theexpress terms of an agreement and any applicable course of performance, courseof dealing, or usage of trade must be construed whenever reasonable asconsistent with each other. If such a construction is unreasonable:
(1) Express terms prevail over course of performance, courseof dealing, and usage of trade;
(2) Course of performance prevails over course of dealing andusage of trade; and
(3) Course of dealing prevails over usage of trade.
(f) Subject to § 6A-2-209, a course of performance isrelevant to show a waiver or modification of any term inconsistent with thecourse of performance.
(g) Evidence of a relevant usage of trade offered by oneparty is not admissible unless that party has given the other party notice thatthe court finds sufficient to prevent unfair surprise to the other party.