70A-1a-303 - Course of performance, course of dealing, and usage of trade.
70A-1a-303. Course of performance, course of dealing, and usage of trade.
(1) A "course of performance" is a sequence of conduct between the parties to aparticular transaction that exists if:
(a) the agreement of the parties with respect to the transaction involves repeatedoccasions for performance by a party; and
(b) the other party, with knowledge of the nature of the performance and opportunity forobjection to it, accepts the performance or acquiesces in it without objection.
(2) A "course of dealing" is a sequence of conduct concerning previous transactionsbetween the parties to a particular transaction that is fairly to be regarded as establishing acommon basis of understanding for interpreting their expressions and other conduct.
(3) A "usage of trade" is any practice or method of dealing having such regularity ofobservance in a place, vocation, or trade as to justify an expectation that it will be observed withrespect to the transaction in question. The existence and scope of such a usage must be proved asfacts. If it is established that such a usage is embodied in a trade code or similar record, theinterpretation of the record is a question of law.
(4) A course of performance or course of dealing between the parties or usage of trade inthe vocation or trade in which they are engaged or of which they are or should be aware isrelevant in ascertaining the meaning of the parties' agreement, may give particular meaning tospecific terms of the agreement, and may supplement or qualify the terms of the agreement. Ausage of trade applicable in the place in which part of the performance under the agreement is tooccur may be so utilized as to that part of the performance.
(5) Except as otherwise provided in Subsection (6), the express terms of an agreementand any applicable course of performance, course of dealing, or usage of trade must be construedwhenever reasonable as consistent with each other. If such a construction is unreasonable:
(a) express terms prevail over course of performance, course of dealing, and usage oftrade;
(b) course of performance prevails over course of dealing and usage of trade; and
(c) course of dealing prevails over usage of trade.
(6) Subject to Section 70A-2-209, a course of performance is relevant to show a waiveror modification of any term inconsistent with the course of performance.
(7) Evidence of a relevant usage of trade offered by one party is not admissible unlessthat party has given the other party notice that the court finds sufficient to prevent unfair surpriseto the other party.
Enacted by Chapter 272, 2007 General Session