1. Contracts Interpretation of Terms
Course of Performance, Course of Dealing, Usage of Trade*
Course of Performance: same contractual parties, evidence of how they have performed in relation to the same contract, e.g., did how a supplier already shipped something clarify what the contract term meant?
Course of Dealing: same contractual parties, but different (possibly only “prior”) contractual arrangements, e.g., how did they do something as part of last year’s, similar, contract?
Usage of Trade: different parties, different contracts – how would others in the industry have interpreted/ done something? That the disagreeing parties would know about and have in mind or been following?
*These too range from least to most extrinsic and where possible this order should be followed, BUT only as part of fourth, ‘holistic’ test.
These are specifically pronounced and defined in U.C.C. Articles 1 and 2 and therefore are a “go to” in cases of sales of goods. NOTE: these same concepts may be used at common law, and there is a Rest. (Second) Contracts that specifically mentions two of the three above.**
***These would not supersede clear terms where they would be contradictory thereto. They are aids in case of ambiguity…
**The Restatement (Second) does not mention “course of performance.” Probably still useable, however, even common law.
***These could be used despite the existence of an exrpress, contradictory term, if there has been for example a waiver of such express right.
© 2018 Paul J. Carrier, Paul J Carrier, LLC Blue – Category Recognition; White – Specific Category; Yellow – “Black Letter” Rules (to be memorized); Green – Main Factual Issues – Analysis; Red – Upper-Level, Integrated Comprehension