§ 1—303. Course of performance, course of dealing, and usage of trade
(a) A “course of performance” is a sequence of conduct between the parties to a particular
transaction that exists if:
(1) the agreement of the parties with respect to the transaction involves repeated occasions
for performance by a party; and
(2) the 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.
(b) A “course of dealing” is a sequence of conduct concerning previous transactions between
the parties to a particular transaction that is fairly to be regarded as establishing
a common basis of understanding for interpreting their expressions and other conduct.
(c) A “usage of trade” is any practice or method of dealing having such regularity of
observance in a place, vocation, or trade as to justify an expectation that it will
be observed with respect to the transaction in 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 similar record, the interpretation of the record is a question
of law.
(d) A course of performance or course of dealing between the parties or usage of trade
in the vocation or trade in which they are engaged or of which they are or should
be aware is relevant in ascertaining the meaning of the parties’ agreement, may give
particular meaning to specific terms of the agreement, and may supplement or qualify
the terms of the agreement. A usage of trade applicable in the place in which part
of the performance under the agreement is to occur may be so utilized as to that part
of the performance.
(e) Except as otherwise provided in subsection (f) of this section, the express terms
of an agreement and any applicable course of performance, course of dealing, or usage
of trade must be construed whenever reasonable as consistent with each other. If such
a construction is unreasonable:
(1) express terms prevail over course of performance, course of dealing, and usage of
trade;
(2) course of performance prevails over course of dealing and usage of trade; and
(3) course of dealing prevails over usage of trade.
(f) Subject to section 2—209 of this title, a course of performance is relevant to show a waiver or modification of any term
inconsistent with the course of performance.
(g) Evidence of a relevant usage of trade offered by one party is not admissible unless
that party has given the other party notice that the court finds sufficient to prevent
unfair surprise to the other party. (Added 2007, No. 99 (Adj. Sess.), § 2.)