§ 41-01-17 — (1-303) Course of performance - Course of dealing - Usage of trade

North Dakota § 41-01-17

• Jurisdiction: North Dakota
• Title 41: Uniform Commercial Code
• Ch. 41-01: General Provisions

Text

1. A "course of performance" is a sequence of conduct between the parties to a particular
transaction that exists if:
a. The agreement of the parties with respect to the transaction involves repeated
occasions for performance by a party; and
b. The other party, with knowledge of the nature of the performance and opportunity
for objection to it, accepts the performance or acquiesces in the performance
without objection.
2. 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.
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 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.
4. A course of performance or course of dealing between the parties or usage of trade in
the vocation or trade in which the parties are engaged or of which the parties 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.
5. Except as otherwise provided in subsection 6, 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:
a. Express terms prevail over course of performance, course of dealing, and usage
of trade;
b. Course of performance prevails over course of dealing and usage of trade; and
c. Course of dealing prevails over usage of trade.
6. Subject to section 41-02-16, a course of performance is relevant to show a waiver or
modification of any term inconsistent with the course of performance.

7. 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.