Sales and Leases | 111
or (2) the usage of trade must be in some vocation or trade that the parties are engaged in. It bears emphasizing that these requirements are alternative. Thus, if the usage of trade is in some vocation or trade that the parties engage in, it binds them, even if they do not know about it. If the usage of trade is not in the parties’ vocation or trade, then for the usage to bind them, it must be that the parties know about it or should know about it. [U.C.C. § 1-303(d) (2001); 1 Hawkland UCC Series § 1-303:4, Westlaw (database updated June 2021).] Note : If part of the contractual performance is to occur in a place, and there is an applicable usage of trade in that place, then the usage of trade is interpretatively relevant concerning that part of the performance. [U.C.C. § 1-303(d) (2001).] Example : A buyer contracted to purchase a specified quantity of sugar from a seller. If the buyer and seller are both sugar merchants, then some usage of trade in the sugar business would bind the parties, whether they know about it or not. If the seller is a sugar merchant, but the buyer is not, then for the usage to apply, it must be that the buyer knows or should know about it. [ See 1 Hawkland UCC Series § 1-303:4, Westlaw (database updated June 2021).] d. Notice Requirement for Usage of Trade If one party offers evidence of a relevant usage of trade, the evidence is inadmissible unless the proffering party has given the other party notice. The court must find the notice sufficient to prevent unfair surprise to the other party. This rule’s purpose is to prevent abusive utilization of trade usages. [U.C.C. § 1-303(g), cmt. 9 (2001).] e. Well-Established Usage Varying from UCC without a Precise Amount of Variation Sometimes, there will be a well-established usage that varies from the UCC’s gap-filler provisions, but the precise amount or degree of variance has not been worked out into a single standard. Here, if the party relying on the usage proves it, then that party is entitled to at least the minimum variation demonstrated. For instance, in a particular trade, it may be established that late deliveries between two and 10 days are generally tolerated. Here, barring any express agreement, course of performance, or course of dealing indicating to the contrary, the seller is entitled to deliver the goods at least two days late. [ See U.C.C. § 1-303, cmt. 8 (2001); 1 Hawkland UCC Series § 1-303:4, Westlaw (database updated June 2021).]
Made with FlippingBook - Online Brochure Maker