Usage, course of dealing, and course of performance under the UCC · Next Generation Bar Exam

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Seller and Buyer have entered into four separate contracts over three years for the sale of No. 2 yellow corn. In each prior contract, both parties treated the term 'bushel' as meaning 56 pounds and settled their accounts on that basis. The current contract, also for No. 2 yellow corn, states that Buyer will purchase '10,000 bushels' but does not define 'bushel.' In the regional grain trade, there is a regular and widely observed usage that a 'bushel' of No. 2 yellow corn means 60 pounds. Seller delivered corn measured at 60 pounds per bushel. Buyer rejected the excess, insisting that 'bushel' means 56 pounds as in the parties' prior dealings. The governing statute and official comment provide in relevant part: § 1-303(b): A 'course of dealing' is a sequence of previous conduct 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. § 1-303(c): 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. § 1-303(d): A course of dealing between the parties ... or a usage of trade in the vocation or trade in which they are engaged or of which they are or should have been aware is relevant ... and may supplement or qualify the terms of the agreement. § 1-303(e): Except as otherwise provided in subsection (f), express terms prevail over course of performance, course of dealing, and usage of trade. Official Comment: As between a course of dealing and a usage of trade, the course of dealing controls.

Who is likely to prevail on the meaning of 'bushel'?

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