Section 45.01.303. 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 the
        (1) agreement of the parties with respect to the transaction involves repeated occasions for performance by a party; and
        (2) 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 the parties' expressions and other conduct.
   (c) A "usage of trade" is a practice or method of dealing having the 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 a usage of trade must be proved as facts. If it is established that a usage of trade 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 used as indicated in the previous sentence as to that part of the performance.
   (e) Except as otherwise provided in (f) of this section, the express terms of an agreement and an applicable course of performance, course of dealing, or usage of trade must be construed whenever reasonable as consistent with each other. If this 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 AS 45.02.209, a course of performance is relevant to show a waiver or modification of a 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.

Authorities

45.01.211;45.02.202

Notes

References

AS 45.01.211 General definitions.
AS 45.02.202 Final written expression; parol or extrinsic evidence.

History

(Sec. 9 ch 44 SLA 2009)