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Contract A course of performance or course of dealing between the parties (1) is relevant to ascertain the meaning of their agreement, (2) may lend specific meaning to discrete terms in the agreement, and (3) may qualify or supplement the agreement’s terms. [U.C.C. § 1- 303(d)(2001).] 2. Usage of Trade In a loose, general sense, a usage of trade is an industry standard or custom. More precisely, in the UCC, a usage of trade is a practice or a method of dealing. The practice or method must be so regularly observed in a place, trade, or vocation that one could justifiably expect the parties to observe it in the transaction being interpreted. Whether a usage of trade exists and its scope are both questions of fact. If the usage is embodied in a record, such as a trade code, interpreting the record is a question of law for the court. [U.C.C. § 1-303(c) (1951).] a. Regularity of Observance The requirement for regularity of observance does not mean that the usage of trade must be ancient, immemorial, or universal. Rather, it may suffice if most decent, law-abiding dealers in the trade abide by the usage. Thus, even new usages, if sufficiently observed, may be relevant to interpreting a contract. Similarly, if merchants generally follow principles set forth in a trade code or similar document, the rules in the document may suffice. Thus, a usage of trade can easily be relevant even if a few of the inevitable dissidents in the industry want to cut corners or otherwise disregard the usage. [ See U.C.C. § 1-303, cmt. 5 (2001).] b. Policing Unconscionable and Dishonest Practices Implicit in the UCC’s rules on trade usages is the notion that, for a usage of trade to factor into contract interpretation, it must be reasonable. The mere fact that the usage is regularly observed generally establishes a rebuttable presumption that the usage is reasonable. But courts retain discretion to apply the rules on unconscionability to disregard unscrupulous, dishonest, or unlawful trade practices, even if they become the norm in the relevant industry. [U.C.C. § 1-303, cmt. 5 (2001); 1 Hawkland UCC Series § 1-303:4, Westlaw (database updated June 2021).] c. Relevance of Usage of Trade in Interpreting a Contract Usage of trade is relevant to contractual interpretation in the same ways as course of performance and course of dealing. However, to be considered at all in interpreting a contract, usage of trade must satisfy at least one of two separate, alternative requirements. Namely, either (1) the usage of trade is one the parties know about or should know about,
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