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:
that <insert term> was a
(custom in the industry / usage of trade);
that each party knew or had reason
to know of the (custom / usage); and
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.