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Texas Business & Commerce Code - Section 1.303. Course Of Performance, Course Of Dealing, And Usage Of Trade

Legal Research Home > Texas Laws > Business & Commerce Code > Texas Business & Commerce Code - Section 1.303. Course Of Performance, Course Of Dealing, And Usage Of Trade

§ 1.303. 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:
		(1)  the agreement of the parties with respect to the 
transaction involves repeated occasions for performance by a party;  
and
		(2)  the 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 their expressions and other 
conduct.
	(c)  A "usage of trade" is any practice or method of dealing 
having such 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 such a 
usage must be proved as facts.  If it is established that such a 
usage 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 so utilized as to that part of the 
performance.
	(e)  Except as otherwise provided in Subsection (f), the 
express terms of an agreement and any applicable course of 
performance, course of dealing, or usage of trade must be construed 
whenever reasonable as consistent with each other.  If such a 
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 Section 2.209, a course of performance is 
relevant to show a waiver or modification of any 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.

Added by Acts 2003, 78th Leg., ch. 542, § 1, eff. Sept. 1, 2003.           

Last modified: August 11, 2007