Virginia Code 59.1-503.2: Practical construction
(a) The express terms of an agreement and any course of performance, course of dealing, or usage of trade must be construed whenever reasonable as consistent with each other. However, if that construction is unreasonable:
Terms Used In Virginia Code 59.1-503.2
- Agreement: means the bargain of the parties in fact as found in their language or by implication from other circumstances, including course of performance, course of dealing, and usage of trade as provided in this chapter. See Virginia Code 59.1-501.2
- Course of dealing: means a sequence of previous conduct between the parties to a particular transaction which establishes a common basis of understanding for interpreting their expressions and other conduct. See Virginia Code 59.1-501.2
- Course of performance: means repeated performances, under a contract that involves repeated occasions for performance, which are accepted or acquiesced in without objection by a party having knowledge of the nature of the performance and an opportunity to object to it. See Virginia Code 59.1-501.2
- Court: includes an arbitration or other dispute-resolution forum if the parties have agreed to use of that forum or its use is required by law. See Virginia Code 59.1-501.2
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Party: means a person that engages in a transaction or makes an agreement under this chapter. See Virginia Code 59.1-501.2
- Usage of trade: means any practice or method of dealing that has 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. See Virginia Code 59.1-501.2
(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.
(b) An applicable usage of trade in the place where any part of performance is to occur must be used in interpreting the agreement as to that part of the performance.
(c) Evidence of a relevant course of performance, course of dealing, or usage of trade offered by one party in a proceeding is not admissible unless and until the party offering the evidence has given the other party notice that the court finds sufficient to prevent unfair surprise.
(d) The existence and scope of a usage of trade must be proved as facts.