 |
 |
|
|
|
|
| search a lawyer |
|
|
| ACTS, STATUTES |
|
|
|
|
|
|
|
|
|
|
|
|
| Home > Statutes > Usa Oregon |
|
USA Statutes : oregon
Title : TITLE 08 COMMERCIAL TRANSACTIONS
Chapter : Chapter 71 General Provisions for Uniform Commercial Code
|
|
This chapter and ORS chapters 72, 72A, 73, 74,
74A, 75, 77, 78 and 79 may be cited as Uniform Commercial Code. [1961
c.726 §71.1010; 1989 c.676 §79; 1991 c.83 §2; 1991 c.442 §§39,40; 2001
c.445 §129]
(1) The Uniform Commercial Code shall be liberally construed and applied
to promote its underlying purposes and policies.
(2) Underlying purposes and policies of the Uniform Commercial Code
are:
(a) To simplify, clarify and modernize the law governing commercial
transactions;
(b) To permit the continued expansion of commercial practices
through custom, usage and agreement of the parties;
(c) To make uniform the law among the various jurisdictions.
(3) The effect of provisions of the Uniform Commercial Code may be
varied by agreement, except as otherwise provided in the Uniform
Commercial Code and except that the obligations of good faith, diligence,
reasonableness and care prescribed by the Uniform Commercial Code may not
be disclaimed by agreement but the parties may by agreement determine the
standards by which the performance of such obligations is to be measured
if such standards are not manifestly unreasonable.
(4) The presence in certain provisions of the Uniform Commercial
Code of the words "unless otherwise agreed" or words of similar import
does not imply that the effect of other provisions may not be varied by
agreement under subsection (3) of this section.
(5) In the Uniform Commercial Code, unless the context otherwise
requires:
(a) Words in the singular number include the plural, and in the
plural include the singular;
(b) Words of the masculine gender include the feminine and the
neuter, and when the sense so indicates words of the neuter gender may
refer to any gender. [1961 c.726 §71.1020] Unless
displaced by the particular provisions of the Uniform Commercial Code,
the principles of law and equity, including the law merchant and the law
relative to capacity to contract, principal and agent, estoppel, fraud,
misrepresentation, duress, coercion, mistake, bankruptcy, or other
validating or invalidating cause shall supplement its provisions. [1961
c.726 §71.1030] The Uniform
Commercial Code being a general law intended as a unified coverage of its
subject matter, no part of it shall be deemed to be impliedly repealed by
subsequent legislation if such construction can reasonably be avoided.
(1) Except as provided hereafter
in this section, when a transaction bears a reasonable relation to this
state and also to another state or nation the parties may agree that the
law either of this state or of such other state or nation shall govern
their rights and duties. Failing such agreement the Uniform Commercial
Code applies to transactions bearing an appropriate relation to this
state.
(2) Where one of the following provisions specifies the applicable
law, that provision governs and a contrary agreement is effective only to
the extent permitted by the law (including the conflict of laws rules) so
specified:
(a) Rights of creditors against sold goods as specified in ORS
72.4020.
(b) Applicability of ORS chapter 72A on leases.
(c) Applicability of ORS chapter 74 as specified in ORS 74.1020.
(d) Applicability of ORS chapter 74A as specified in ORS 74A.5070.
(e) Applicability of ORS chapter 75 as specified in ORS 75.1160.
(f) Applicability of ORS chapter 78 as specified in ORS 78.1100.
(g) ORS 79.0301 to 79.0307 governing perfection, the effect of
perfection or nonperfection, and the priority of security interests and
Note: For transition provisions regarding secured transactions, see
notes under 79.0628. (1) The remedies
provided by the Uniform Commercial Code shall be liberally administered
to the end that the aggrieved party may be put in as good a position as
if the other party had fully performed but neither consequential or
special nor penal damages may be had except as specifically provided in
the Uniform Commercial Code or by other rule of law.
(2) Any right or obligation declared by the Uniform Commercial Code
is enforceable by action unless the provision declaring it specifies a
different and limited effect. [1961 c.726 §71.1060] Any
claim or right arising out of an alleged breach can be discharged in
whole or in part without consideration by a written waiver or
renunciation signed and delivered by the aggrieved party. [1961 c.726
§71.1070] If any provision or clause of the Uniform
Commercial Code or application thereof to any person or circumstances is
held invalid, such invalidity shall not affect other provisions or
applications of the Uniform Commercial Code which can be given effect
without the invalid provision or application, and to this end the
provisions of the Uniform Commercial Code are declared to be severable.
[1961 c.726 §71.1080] The unit and section captions, though set forth
in the Uniform Commercial Code, are not part of the statutory law of
Oregon. [1961 c.726 §71.1090]DEFINITIONS AND PRINCIPLES OF INTERPRETATION Subject to additional definitions
contained in other sections of the Uniform Commercial Code which are
applicable to a specific series of sections, and unless the context
otherwise requires, in the Uniform Commercial Code:
(1) "Action" in the sense of a judicial proceeding includes
recoupment, counterclaim, setoff, suit in equity and any other
proceedings in which rights are determined.
(2) "Aggrieved party" means a party entitled to resort to a remedy.
(3) "Agreement" means the bargain of the parties in fact as found
in their language or by implication from other circumstances including
course of dealing or usage of trade or course of performance as provided
in ORS 71.2050 and 72.2080. Whether an agreement has legal consequences
is determined by the provisions of the Uniform Commercial Code, if
applicable; otherwise by the law of contracts as specified in ORS 71.1030.
(4) "Bank" means any person engaged in the business of banking.
(5) "Bearer" means the person in possession of an instrument,
document of title or security payable to bearer or indorsed in blank.
(6) "Bill of lading" means a document evidencing the receipt of
goods for shipment issued by a person engaged in the business of
transporting or forwarding goods, and includes an airbill. "Airbill"
means a document serving for air transportation as a bill of lading does
for marine or rail transportation, and includes an air consignment note
or air waybill.
(7) "Branch" includes a separately incorporated foreign branch of a
bank.
(8) "Burden of establishing" a fact means the burden of persuading
the triers of fact that the existence of the fact is more probable than
its nonexistence.
(9) "Buyer in ordinary course of business" means a person that buys
goods in good faith, without knowledge that the sale violates the rights
of another person in the goods, and in the ordinary course from a person,
other than a pawnbroker, in the business of selling goods of that kind. A
person buys goods in the ordinary course if the sale to the person
comports with the usual or customary practices in the kind of business in
which the seller is engaged or with the seller's own usual or customary
practices. A person that sells oil, gas or other minerals at the wellhead
or minehead is a person in the business of selling goods of that kind. A
buyer in ordinary course of business may buy for cash, by exchange of
other property, or on secured or unsecured credit, and may acquire goods
or documents of title under a preexisting contract for sale. Only a buyer
that takes possession of the goods or has a right to recover the goods
from the seller under ORS chapter 72 may be a buyer in ordinary course of
business. A person that acquires goods in a transfer in bulk or as
security for or in total or partial satisfaction of a money debt is not a
buyer in ordinary course of business.
(10) "Conspicuous": A term or clause is conspicuous when it is so
written that a reasonable person against whom it is to operate ought to
have noticed it. A printed heading in capitals (as: NONNEGOTIABLE BILL OF
LADING) is conspicuous. Language in the body of a form is "conspicuous"
if it is in larger or other contrasting type or color. But in a telegram
any stated term is "conspicuous." Whether a term or clause is
"conspicuous" or not is for decision by the court.
(11) "Contract" means the total legal obligation which results from
the parties' agreement as affected by the Uniform Commercial Code and any
other applicable rules of law.
(12) "Creditor" includes a general creditor, a secured creditor, a
lien creditor and any representative of creditors, including an assignee
for the benefit of creditors, a trustee in bankruptcy, a receiver in
equity and an executor or administrator of an insolvent debtor's or
assignor's estate.
(13) "Defendant" includes a person in the position of defendant in
a cross action or counterclaim.
(14) "Delivery" with respect to instruments, documents of title,
chattel paper or certificated securities means voluntary transfer of
possession.
(15) "Document of title" includes bill of lading, dock warrant,
dock receipt, warehouse receipt or order for the delivery of goods, and
also any other document which in the regular course of business or
financing is treated as adequately evidencing that the person in
possession of it is entitled to receive, hold and dispose of the document
and the goods it covers. To be a document of title a document must
purport to be issued by or addressed to a bailee and purport to cover
goods in the bailee's possession which are either identified or are
fungible portions of an identified mass.
(16) "Fault" means wrongful act, omission or breach.
(17) "Fungible" with respect to goods or securities means goods or
securities of which any unit is, by nature or usage of trade, the
equivalent of any other like unit. Goods which are not fungible shall be
deemed fungible for the purposes of the Uniform Commercial Code to the
extent that under a particular agreement or document unlike units are
treated as equivalents.
(18) "Genuine" means free of forgery or counterfeiting.
(19) "Good faith" means honesty in fact in the conduct or
transaction concerned.
(20) "Holder" means:
(a) With respect to a negotiable instrument, the person in
possession of the negotiable instrument if:
(A) The instrument is payable to bearer; or
(B) The instrument is payable to an identified person, and the
identified person is in possession.
(b) With respect to a document of title, the person in possession
of the document of title if the goods are deliverable to bearer or to the
order of the person in possession.
(21) To "honor" is to pay or to accept and pay, or where a credit
so engages to purchase or discount a draft complying with the terms of
the credit.
(22) "Insolvency proceedings" includes any assignment for the
benefit of creditors or other proceedings intended to liquidate or
rehabilitate the estate of the person involved.
(23) A person is "insolvent" who either has ceased to pay the
person's debts in the ordinary course of business or cannot pay the
person's debts as they become due or is insolvent within the meaning of
the federal bankruptcy law.
(24) "Money" means a medium of exchange authorized or adopted by a
domestic or foreign government and includes a monetary unit of account
established by an intergovernmental organization or by agreement between
two or more nations.
(25) A person has "notice" of fact when:
(a) The person has actual knowledge of it;
(b) The person has received a notice or notification of it; or
(c) From all the facts and circumstances known to the person at the
time in question the person has reason to know that it exists.A person "knows" or has "knowledge" of a fact when the person has actual
knowledge of it. "Discover" or "learn" or a word or phrase of similar
import refers to knowledge rather than to reason to know. The time and
circumstances under which a notice or notification may cease to be
effective are not determined by the Uniform Commercial Code.
(26) A person "notifies" or "gives" a notice or notification to
another by taking such steps as may be reasonably required to inform the
other in ordinary course whether or not such other actually comes to know
of it. A person "receives" a notice or notification when:
(a) It comes to the person's attention; or
(b) It is duly delivered at the place of business through which the
contract was made or at any other place held out by the person as the
place for receipt of such communications.
(27) Notice, knowledge or a notice or notification received by an
organization is effective for a particular transaction from the time when
it is brought to the attention of the individual conducting that
transaction, and in any event from the time when it would have been
brought to the individual's attention if the organization had exercised
due diligence.
(28) "Organization" includes a corporation, government or
governmental subdivision or agency, business trust, estate, trust,
partnership or association, two or more persons having a joint or common
interest, or any other legal or commercial entity.
(29) "Party," as distinct from "third party," means a person who
has engaged in a transaction or made an agreement within the Uniform
Commercial Code.
(30) "Person" includes an individual or an organization.
(31) "Presumption" or "presumed" means that the trier of fact must
find the existence of the fact presumed unless and until evidence is
introduced which would support a finding of its nonexistence.
(32) "Purchase" includes taking by sale, discount, negotiation,
mortgage, pledge, lien, security interest, issue or reissue, gift or any
other voluntary transaction creating an interest in property.
(33) "Purchaser" means a person who takes by purchase.
(34) "Remedy" means any remedial right to which an aggrieved party
is entitled with or without resort to a tribunal.
(35) "Representative" includes an agent, an officer of a
corporation or association, and a trustee, executor or administrator of
an estate, or any other person empowered to act for another.
(36) "Rights" includes remedies.
(37)(a) "Security interest" means an interest in personal property
or fixtures which secures payment or performance of an obligation. The
term also includes any interest of a consignor and a buyer of accounts,
chattel paper, a payment intangible or a promissory note in a transaction
that is subject to ORS chapter 79. The special property interest of a
buyer of goods on identification of such goods to a contract for sale
under ORS 72.4010 is not a "security interest," but a buyer may also
acquire a "security interest" by complying with ORS chapter 79. Except as
otherwise provided in ORS 72.5050, the right of a seller or lessor of
goods under ORS chapter 72 or 72A to retain or acquire possession of the
goods is not a "security interest," but a seller or lessor may also
acquire a "security interest" by complying with ORS chapter 79. The
retention or reservation of title by a seller of goods notwithstanding
shipment or delivery to the buyer (ORS 72.4010) is limited in effect to a
reservation of a "security interest." Whether a transaction creates a
lease or security interest is determined by the facts of each case;
however, a transaction creates a security interest if the consideration
the lessee is to pay the lessor for the right to possession and use of
the goods is an obligation for the term of the lease not subject to
termination by the lessee and:
(A) The original term of the lease is equal to or greater than the
remaining economic life of the goods;
(B) The lessee is bound to renew the lease for the remaining
economic life of the goods or is bound to become the owner of the goods;
(C) The lessee has an option to renew the lease for the remaining
economic life of the goods for no additional consideration or nominal
additional consideration upon compliance with the lease agreement; or
(D) The lessee has an option to become the owner of the goods for
no additional consideration or nominal additional consideration upon
compliance with the lease agreement.
(b) A transaction does not create a security interest merely
because it provides that:
(A) The present value of the consideration the lessee is obligated
to pay the lessor for the right to possession and use of the goods is
substantially equal to or is greater than the fair market value of the
goods at the time the lease is entered into;
(B) The lessee assumes risk of loss of the goods, or agrees to pay
taxes, insurance, filing, recording or registration fees, or service or
maintenance costs with respect to the goods;
(C) The lessee has an option to renew the lease or to become the
owner of the goods;
(D) The lessee has an option to renew the lease for a fixed rent
that is equal to or greater than the reasonably predictable fair market
rent for the use of the goods for the term of the renewal at the time the
option is to be performed; or
(E) The lessee has an option to become the owner of the goods for a
fixed price that is equal to or greater than the reasonably predictable
fair market value of the goods at the time the option is to be performed.
(c) For purposes of this subsection:
(A) "Additional consideration" is not nominal if, when the option
to renew the lease is granted to the lessee, the rent is stated to be the
fair market rent for the use of the goods for the term of the renewal
determined at the time the option is to be performed, or when the option
to become the owner of the goods is granted to the lessee the price is
stated to be the fair market value of the goods determined at the time
the option is to be performed. "Additional consideration" is nominal if
it is less than the lessee's reasonably predictable cost of performing
under the lease agreement if the option is not exercised;
(B) "Present value" means the amount as of a date certain of one or
more sums payable in the future, discounted to the date certain. The
discount is determined by the interest rate specified by the parties if
the rate is not manifestly unreasonable at the time the transaction is
entered into, otherwise, the discount is determined by a commercially
reasonable rate that takes into account the facts and circumstances of
each case at the time the transaction was entered into; and
(C) "Reasonably predictable" and "remaining economic life of the
goods" are to be determined with reference to the facts and circumstances
at the time the transaction is entered into.
(38) "Send" in connection with any writing or notice means to
deposit in the mail or deliver for transmission by any other usual means
of communication with postage or cost of transmission provided for and
properly addressed and in the case of an instrument to an address
specified thereon or otherwise agreed, or if there be none to any address
reasonable under the circumstances. The receipt of any writing or notice
within the time at which it would have arrived if properly sent has the
effect of a proper sending.
(39) "Signed" includes any symbol executed or adopted by a party
with present intention to authenticate a writing.
(40) "Surety" includes guarantor.
(41) "Telegram" includes a message transmitted by radio, teletype,
cable, any mechanical method of transmission, or the like.
(42) "Term" means that portion of an agreement which relates to a
particular matter.
(43) "Unauthorized" signature or indorsement means one made without
actual, implied or apparent authority and includes a forgery.
(44) "Value." Except as otherwise provided with respect to
negotiable instruments and bank collections in ORS 74.2090 and 74.2100, a
person gives "value" for rights if the person acquires them:
(a) In return for a binding commitment to extend credit or for the
extension of immediately available credit whether or not drawn upon and
whether or not a chargeback is provided for in the event of difficulties
in collection;
(b) As security for or in total or partial satisfaction of a
preexisting claim;
(c) By accepting delivery pursuant to a preexisting contract for
purchase; or
(d) Generally, in return for any consideration sufficient to
support a simple contract.
(45) "Warehouse receipt" means a receipt issued by a person engaged
in the business of storing goods for hire.
(46) "Written" or "writing" includes printing, typewriting or any
other intentional reduction to tangible form. [1961 c.726 §71.2010; 1973
c.504 §2; 1985 c.676 §71.2010; 1989 c.676 §81; 1993 c.545 §1; 1995 c.79
§20; 1997 c.834 §1; 2001 c.445 §131]Note: For transition provisions regarding secured transactions, see
notes under 79.0628. A document
in due form purporting to be a bill of lading, policy or certificate of
insurance, official weigher's or inspector's certificate, consular
invoice, or any other document authorized or required by the contract to
be issued by a third party shall be prima facie evidence of its own
authenticity and genuineness and of the facts stated in the document by
the third party. [1961 c.726 §71.2020] Every contract or duty within the
Uniform Commercial Code imposes an obligation of good faith in its
performance or enforcement. [1961 c.726 §71.2030]" (1) Whenever the
Uniform Commercial Code requires any action to be taken within a
reasonable time, any time which is not manifestly unreasonable may be
fixed by agreement.
(2) What is a reasonable time for taking any action depends on the
nature, purpose and circumstances of such action.
(3) An action is taken "seasonably" when it is taken at or within
the time agreed or if no time is agreed at or within a reasonable time.
[1961 c.726 §71.2040] (1) A course of
dealing is a sequence of previous conduct between the parties to a
particular transaction which is fairly to be regarded as establishing a
common basis of understanding for interpreting their expressions and
other conduct.
(2) 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. The existence and scope of such a usage are to be proved as
facts. If it is established that such a usage is embodied in a written
trade code or similar writing the interpretation of the writing is for
the court.
(3) A course of dealing between parties and any usage of trade in
the vocation or trade in which they are engaged or of which they are or
should be aware give particular meaning to and supplement or qualify
terms of an agreement.
(4) The express terms of an agreement and an applicable course of
dealing or usage of trade shall be construed wherever reasonable as
consistent with each other; but when such construction is unreasonable
express terms control both course of dealing and usage of trade and
course of dealing controls usage of trade.
(5) An applicable usage of trade in the place where any part of
performance is to occur shall be used in interpreting the agreement as to
that part of the performance.
(6) Evidence of a relevant usage of trade offered by one party is
not admissible unless and until the party has given the other party such
notice as the court finds sufficient to prevent unfair surprise to the
latter. [1961 c.726 §71.2050](1) Except in the cases described in subsection (2) of
this section a contract for the sale of personal property is not
enforceable by way of action or defense beyond $5,000 in amount or value
of remedy unless there is some writing which indicates that a contract
for sale has been made between the parties at a defined or stated price,
reasonably identifies the subject matter, and is signed by the party
against whom enforcement is sought or by the authorized agent of the
party.
(2) Subsection (1) of this section does not apply to contracts for
the sale of goods nor of securities nor to security agreements. [1961
c.726 §71.2060](1) A party who with explicit
reservation of rights performs or promises performance or assents to
performance in a manner demanded or offered by the other party does not
thereby prejudice the rights reserved. Such words as "without prejudice,"
"under protest" or the like are sufficient.
(2) Subsection (1) of this section does not apply to an accord and
satisfaction. [1961 c.726 §71.2070; 1993 c.545 §2] A term providing that one
party or the successor in interest of the party may accelerate payment or
performance or require collateral or additional collateral "at will" or
"when the party deems the party insecure" or in words of similar import
shall be construed to mean that the party shall have power to do so only
if the party in good faith believes that the prospect of payment or
performance is impaired. The burden of establishing lack of good faith is
on the party against whom the power has been exercised. [1961 c.726
§71.2080]
_______________
|
|
|
|
