§ 25-1-303. Course of performance, course of dealing, and usage of trade. - North Carolina Statutes

§ 25‑1‑303. Course of performance, course of dealing, and usage of trade.

(a)        A "course ofperformance" is a sequence of conduct between the parties to a particulartransaction that exists if:

(1)        The agreement of theparties with respect to the transaction involves repeated occasions forperformance by a party; and

(2)        The other party,with knowledge of the nature of the performance and opportunity for objectionto it, accepts the performance or acquiesces in it without objection.

(b)        A "course ofdealing" is a sequence of conduct concerning previous transactions betweenthe parties to a particular transaction that is fairly to be regarded asestablishing a common basis of understanding for interpreting their expressionsand other conduct.

(c)        A "usage of trade"is any practice or method of dealing having such regularity of observance in aplace, vocation, or trade as to justify an expectation that it will be observedwith respect to the transaction in question. The existence and scope of such ausage must be proved as facts. If it is established that such a usage isembodied in a trade code or similar record, the interpretation of the record isa question of law.

(d)        A course ofperformance or course of dealing between the parties or usage of trade in the vocationor 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 giveparticular meaning to specific terms of the agreement, and may supplement orqualify the terms of the agreement. A usage of trade applicable in the place inwhich part of the performance under the agreement is to occur may be soutilized as to that part of the performance.

(e)        Except as otherwiseprovided in subsection (f) of this section, the express terms of an agreementand any applicable course of performance, course of dealing, or usage of trademust be construed whenever reasonable as consistent with each other. If such aconstruction is unreasonable:

(1)        Express termsprevail over course of performance, course of dealing, and usage of trade;

(2)        Course ofperformance prevails over course of dealing and usage of trade; and

(3)        Course of dealingprevails over usage of trade.

(f)         Subject to G.S. 25‑2‑209,a course of performance is relevant to show a waiver or modification of anyterm inconsistent with the course of performance.

(g)        Evidence of arelevant usage of trade offered by one party is not admissible unless thatparty has given the other party notice that the court finds sufficient toprevent unfair surprise to the other party. (1965, c. 700, s. 1; 2006‑112, s. 1.)