UNIFORM COMMERCIAL CODE
Act 174 of 1962
440.1303 Course of performance, course of dealing, or usage of trade.
Sec. 1303.
(1) For purposes of this act, a "course of performance" is a sequence of conduct between the parties to a particular transaction that exists if both of the following are met:
(a) The agreement of the parties with respect to the transaction involves repeated occasions for performance by a party.
(b) 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.
(2) For purposes of this act, 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) For purposes of this act, 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 a usage of trade must be proved as facts. If it is established that a usage of trade 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 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.
(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. All of the following apply if that 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.
(c) Course of dealing prevails over usage of trade.
(6) Subject to section 2209, 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 1 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: Add. 2012, Act 86, Eff. July 1, 2013
Notes of Decisions
Pct Brands LLC v. Digit. Gadgets LLC (Mich. Ct. App. 2019).
· cites it 7× “] In addition, MCL 440.1303 provides, in relevant part: (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…”
Mssc Inc v. Airboss Flexible Prods. Co (Mich. 2023).
· cites it 2× “MCL 440.1303(4) (“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 [and] may give…”
Iosix, LLC v. Ezlogz, Inc. (E.D. Mich. 2026).
· cites it 2× “”) 3 Mich. Comp. Laws § 440.1303 (6) states that “[s]ubject to section 2209, a course of performance is relevant to show a waiver or modification of any term inconsistent with the course of performance.”
Johnson Elec. North Am., Inc. v. Daimay North Am. Auto., Inc. (E.D. Mich. 2021).
“Laws § 440.1303 . But, as the Court has already held, Daimay Michigan’s part in negotiating the shipment of goods to Daimay Mexico is insufficient to establish that Daimay Michigan had any contractual responsibility for the payment of those shipments.”
S2 Yachts, Inc. v. ERH Marine Corp. (W.D. Mich. 2021).
“LAWS § 440.1303. Here, ERH Marine’s construction is inconsistent, not consistent, with the express terms of the agreement.”
Diponio Contracting Inc v. City of Howell (Mich. Ct. App. 2015).
“[MCL 440.1303(1).] Although the UCC applies to sale-of-goods contracts, course of performance is a well- recognized rule at common law and, therefore, also applicable to service contracts.”
Mich. Comp. Laws § 440.1303(1): 2 cases
Pct Brands LLC v. Digit. Gadgets LLC (Mich. Ct. App. 2019).
“] In addition, MCL 440.1303 provides, in relevant part: (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…”
Diponio Contracting Inc v. City of Howell (Mich. Ct. App. 2015).
“[MCL 440.1303(1).] Although the UCC applies to sale-of-goods contracts, course of performance is a well- recognized rule at common law and, therefore, also applicable to service contracts.”
Mich. Comp. Laws § 440.1303(2): 1 case
Pct Brands LLC v. Digit. Gadgets LLC (Mich. Ct. App. 2019).
“] In addition, MCL 440.1303 provides, in relevant part: (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…”
Mich. Comp. Laws § 440.1303(4): 1 case
Mssc Inc v. Airboss Flexible Prods. Co (Mich. 2023).
“MCL 440.1303(4) (“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 [and] may give…”
Mich. Comp. Laws § 440.1303(5): 2 cases
Pct Brands LLC v. Digit. Gadgets LLC (Mich. Ct. App. 2019).
“] In addition, MCL 440.1303 provides, in relevant part: (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…”
Mssc Inc v. Airboss Flexible Prods. Co (Mich. 2023).
“MCL 440.1303(4) (“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 [and] may give…”
Mich. Comp. Laws § 440.1303(5)(a): 1 case
Pct Brands LLC v. Digit. Gadgets LLC (Mich. Ct. App. 2019).
“] In addition, MCL 440.1303 provides, in relevant part: (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…”
Mich. Comp. Laws § 440.1303(6): 1 case
Pct Brands LLC v. Digit. Gadgets LLC (Mich. Ct. App. 2019).
“] In addition, MCL 440.1303 provides, in relevant part: (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…”
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