6. If Fizzy Cola Company sues the distribution company for breach of their distribution contract, which of the following facts, if established, would most strengthen Fizzy's case?

The UCC imposes an obligation of good faith in the performance and enforcement of every contract. Under § 2-202 of the UCC, contract terms which are intended by the parties to be the final expression of their agreement can't be contradicted by evidence of any previous agreement or contemporaneous oral agreement but may be explained or supplemented by evidence of «consistent additional terms.» These consistent additional terms can be based on (i) course of performance (UCC §2-208 (1) and Rest. 2d., §202(4)), which refers to the way the parties have conducted themselves in performing the particular contract at hand; (ii) course of dealing (UCC §1-205(1) and Rest. 2d., §223), which is a pattern of performance between the parties to the contract with respect to past contracts; and (iii) trade usage (UCC §1-205(2) and Rest. 2d., §222), which is any practice regularly observed in a place, vocation or trade as to justify an expectation that it will be observed with respect to the transaction in question.

The UCC allows trade usage (i.e., industry standard) to inform the interpretation of a contract and will be admitted in court even if there is a complete contract, unless they can't be reasonably reconciled with express terms of the contract.

D is correct. This answer choice addresses the UCC's allowance for trade usage to inform the interpretation of a written contract. Here, the contract between the distribution company and Fizzy required the distribution company to promote the sale of Fizzy Cola in good faith but was silent as to whether the distribution company was restricted from distributing competing brands. Answer D notes that it is industry practice in the soft-drink industry standard for distributors to handle only one brand of cola. Since trade usage demonstrates that soft drink distributors uniformly handle only one brand of cola, this answer strengthens Fizzy's argument because it is objective evidence that the agreement prohibits the distribution company from distributing competitors' brands of cola.

A is incorrect. The disparaging advertising campaign may violate the UCC's good faith requirement, but this would not be a conclusive basis to sue for breach of their distribution contract.

B is incorrect. Similarly, as discussed above, evidence that the sale of Fizzy Cola has dropped 3% in the six-county area, is not objective or conclusive evidence of a breach of contract.

C is incorrect. Evidence that the distribution company previously promised to handle Fizzy's cola «exclusively» could be found contradictory to the written agreement. Since § 2-202 of the UCC states that the written contract can't be contradicted by evidence of any previous agreement, this answer choice is not the best evidence of the distributing company's breach. As such, the best answer here is the answer that refers to trade usage as «consistent additional terms.»