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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.


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.


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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