The premium brisketEl brisket premium

Facts

Prairie Table, a barbecue restaurant in Dallas, signed a one-page supply agreement with Brazos Meats, a Fort Worth wholesaler, for “20 cases per week of premium brisket, choice grade, $4.10/lb.” Both companies have been in the Texas barbecue trade for years. Among Dallas pitmasters, “premium” is widely used to mean USDA Prime, the grade above Choice, and several suppliers advertise “premium (Prime) brisket.”

For the first three weeks Brazos delivered Prime brisket and invoiced at the contract price without comment. In week four, after Prime prices spiked, Brazos delivered Choice brisket. Prairie Table rejected the delivery and now claims breach; Brazos says the contract says “choice grade” in black and white.

In two earlier one-off purchases a year ago, Brazos had sold Prairie Table Choice brisket described on the invoice as “premium choice.”

Call of the question

Did Brazos breach the contract by delivering Choice brisket? Identify the interpretive problem, state the governing framework, apply each source of meaning in order, present the supplier’s best argument, and conclude with your prediction.

Model answer

Brazos probably did not breach, although Prairie Table has a real argument from course of performance.

The sale is of goods between merchants, so Article 2 of the UCC governs and the interpretive sources are those of UCC § 1-303 (express terms, course of performance, course of dealing, usage of trade), read together with the Restatement’s rule for misunderstandings (R.2d § 201). The problem is one of ambiguity: “premium” can mean Prime (the Dallas usage) or simply “good,” while “choice grade” is a defined USDA term. When the parties attach different meanings to a term, neither prevails unless one party knew or had reason to know the other’s meaning (R.2d § 201(2)).

The express term cuts for Brazos. “Choice grade” is specific and technical; under § 1-303(e) express terms prevail over course of performance, course of dealing and usage when they cannot be reconciled. Frigaliment places the burden on the party asserting the narrower meaning, here Prairie Table, to show that Brazos knew or should have known that “premium” meant Prime; the contract’s own grade term is strong evidence that Brazos meant Choice, just as the Department of Agriculture definition anchored the seller’s meaning in Frigaliment.

Prairie Table’s best evidence is course of performance: three deliveries of Prime, accepted and invoiced at the contract price, are the parties’ own reading of the contract (§ 1-303(a)). Course of performance ranks above usage and course of dealing. Hurst adds that trade usage can explain words that look plain, and the Dallas usage of “premium” supports Prairie Table. But the prior course of dealing undercuts it: Brazos had twice sold Choice brisket labeled “premium choice,” which gave Prairie Table reason to know that Brazos uses “premium” as a marketing word, not as a grade.

Brazos will argue that the usage and the course of performance cannot override an express grade term, and that the Prime deliveries were a gratuitous upgrade, not an interpretation. The answer is that course of performance is relevant precisely to show what the parties understood the ambiguous word to mean; three consistent deliveries are more than a courtesy. Even so, the term “choice grade” is express and specific, and under § 1-303(e) it controls where the sources conflict.

On balance, a court will likely hold that Choice brisket conforms. Prairie Table’s remedy is commercial: renegotiate the grade term expressly, because the written word “choice” is the hardest fact to argue around.

Common mistakes

• Treating “premium” as vague (fuzzy edges) rather than ambiguous (two distinct meanings); the distinction changes the analysis.
• Forgetting that express terms sit at the top of the § 1-303 hierarchy.
• Citing Frigaliment for “the buyer always loses” instead of for the burden of proof.
• Ignoring the course of dealing fact, which is the detail that decides reason to know.