                                 CODE OF VIRGINIA

COURSE OF PERFORMANCE, COURSE OF DEALING, AND USAGE OF TRADE (§ 8.1A-303)

a. A &#8220;course of performance&#8221; 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 &#8220;course of dealing&#8221; 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 &#8220;usage of trade&#8221; 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&#8217;
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 &#xA7; 8.2-209, 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.

HISTORY: 1964, c. 219, §§ 8.1-205, 8.2-208; 1991, c. 536, § 8.2A-207; 2003,
c. 353.