Question

4. Evidence of course of dealing or usage of trade may not be offered to explain or supplement a confirmatory memorandum, which was intended by the parties to be the final and complete expression of the parties’ agreement. Is this statement correct? Explain your answer, including the applicable UCC sections.

Answer 1

Ans: This statement is incorrect in accordance with UCC 2-202, “Final Written Expression: Parol or Extrinsic Evidence”. Within the opening statement of UCC 2-202, the correct statement is given:

“Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented

(a)by course of dealing or usage of trade (Section1-205) or by course of performance (Section2-208)”

This means that evidence of any prior agreement or of a contemporaneous oral agreement may/can, in fact, be explained or supplemented. To further elaborate, the “…course of performance, course of dealing, and usage of trade not only create avenues whereby conduct and trade can supply terms of a contract, but also create an avenue by which evidence can be introduced to ‘explain or supplement’ the terms contained in any writings between parties.”