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4.2-10  Implied Term: Custom in the Industry/Usage of Trade

Revised to January 1, 2008

The plaintiff claims that <insert term> should be implied in the contract because it is a (custom in the industry / usage of trade).  The defendant denies this.

To establish this claim, the plaintiff has the burden to prove by a preponderance of the evidence the following facts:

  1. that <insert term> was a (custom in the industry / usage of trade);

  2. that each party knew or had reason to know of the (custom / usage); and

  3. that neither party knew or had reason to know that the other party had intentions inconsistent with that (custom / usage).

If the plaintiff has established this claim, then you should consider the (custom / usage) to be a term of the contract, just as though the contract stated it expressly.

Authority

Mystic Color Lab, Inc. v. Auctions Worldwide, LLC, 284 Conn. 408, 425 (2007); Presidential Capital Corp. v. Reale, 231 Conn. 500, 511 (1994); L.F. Pace & Sons, Inc. v. Travelers Indemnity Co., 9 Conn. App. 30, 38, cert. denied, 201 Conn. 811 (1986).  See Restatement (Second) of Contracts §§ 220-222.

Notes

If there is an express term in the contract that addresses the same subject as the custom or usage, that express term should be given greater weight.  Restatement (Second) of Contracts § 203 (b).
 


 

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