8.1A-303 - A-303. Course of performance, course of dealing, and usage of trade. - Virginia Statutes

§ 8.1A-303. Course of performance, course of dealing, and usage of trade.

(a) A "course of performance" is a sequence of conduct between the partiesto a particular transaction that exists if:

(1) the agreement of the parties with respect to the transaction involvesrepeated occasions for performance by a party; and

(2) the other party, with knowledge of the nature of the performance andopportunity for objection to it, accepts the performance or acquiesces in itwithout objection.

(b) A "course of dealing" is a sequence of conduct concerning previoustransactions between the parties to a particular transaction that is fairlyto 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 dealing having suchregularity of observance in a place, vocation, or trade as to justify anexpectation that it will be observed with respect to the transaction inquestion. The existence and scope of such a usage must be proved as facts. Ifit 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 the parties or usageof trade in the vocation or trade in which they are engaged or of which theyare or should be aware is relevant in ascertaining the meaning of theparties' agreement, may give particular meaning to specific terms of theagreement, and may supplement or qualify the terms of the agreement. A usageof trade 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), the express terms of anagreement and any applicable course of performance, course of dealing, orusage of trade must be construed whenever reasonable as consistent with eachother. If such a construction is unreasonable:

(1) express terms prevail over course of performance, course of dealing, andusage 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 § 8.2-209, a course of performance is relevant to show awaiver or modification of any term inconsistent with the course ofperformance.

(g) Evidence of a relevant usage of trade offered by one party is notadmissible unless that party has given the other party notice that the courtfinds sufficient to prevent unfair surprise to the other party.

(1964, c. 219, §§ 8.1-205, 8.2-208; 1991, c. 536, § 8.2A-207; 2003, c. 353.)