§ 26-1-1-205 — Course of dealing, course of performance, and usage of trade

(1) A course of dealing is a sequence of
previous conduct between the parties to a particular transaction which
is fairly to be regarded as establishing a common basis of
understanding for interpreting their expressions and other conduct.
(2) A course of performance is a sequence of conduct between the
parties to a particular transaction that exists if the:
(a) agreement of the parties with respect to the transaction
involves repeated occasions for performance by a party; and
(b) 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.
(3) 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 are to be proved
as facts. If it is established that such a usage is embodied in a written
trade code or similar writing the interpretation of the writing is for the
court.
(4) A course of dealing or course of performance between parties
and any usage of trade in the vocation or trade in which they are
engaged or of which they are or should be aware give particular
meaning to and supplement or qualify terms of an agreement.
(5) Except as provided in subsection (8), the express terms of an
agreement and an applicable course of dealing, course of performance,
or usage of trade shall be construed wherever reasonable as consistent
with each other. If such a construction is unreasonable:
(a) express terms prevail over course of dealing and course of
performance;
(b) course of performance prevails over course of dealing and
usage of trade; and
(c) course of dealing prevails over usage of trade.
(6) An applicable usage of trade in the place where any part of
performance is to occur shall be used in interpreting the agreement as
to that part of the performance.
(7) Evidence of a relevant usage of trade offered by one party is not
admissible unless and until the party has given the other party such
notice as the court finds sufficient to prevent unfair surprise to the
latter.
(8) Subject to IC 26-1-2-209, a course of performance is relevant to
show a waiver or modification of any term inconsistent with the course
of performance.
Formerly: Acts 1963, c.317, s.1-205. As amended by
P.L.143-2007, SEC.4.