75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1166
A-Engrossed
Senate Bill 558
Ordered by the Senate March 20
Including Senate Amendments dated March 20
Sponsored by COMMITTEE ON JUDICIARY (at the request of Oregon Law
Commission)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Conforms Oregon law to changes in Articles 1 and 7 of Uniform
Commercial Code. Amends other provisions of Oregon law to conform
to changes in Uniform Commercial Code.
A BILL FOR AN ACT
Relating to commercial transactions governed by the Uniform
Commercial Code; creating new provisions; amending ORS 71.1010,
71.1020, 71.1030, 71.1050, 71.1060, 71.1070, 71.1080, 71.2010,
71.2020, 71.2030, 71.2040, 71.2050, 71.2060, 72.1030, 72.1040,
72.2020, 72.3100, 72.3230, 72.4010, 72.5030, 72.5050, 72.5060,
72.5090, 72.6050, 72.7050, 72A.1030, 72A.5010, 72A.5140,
72A.5180, 72A.5190, 72A.5260, 72A.5270, 72A.5280, 73.0103,
74.1040, 74.2100, 74A.1050, 74A.1060, 74A.2040, 75.1030,
77.1020, 77.1030, 77.1040, 77.1050, 77.2010, 77.2020, 77.2030,
77.2040, 77.2050, 77.2060, 77.2070, 77.2080, 77.2090, 77.2100,
77.3010, 77.3020, 77.3030, 77.3040, 77.3050, 77.3070, 77.3080,
77.3090, 77.4010, 77.4020, 77.4030, 77.4040, 77.5010, 77.5020,
77.5030, 77.5040, 77.5050, 77.5060, 77.5070, 77.5080, 77.5090,
77.6010, 77.6020, 77.6030, 78.1020, 78.1030, 79.0102, 79.0203,
79.0207, 79.0208, 79.0301, 79.0310, 79.0312, 79.0313, 79.0314,
79.0317, 79.0338, 79.0601, 84.007, 87.142, 87.685, 87.700,
586.400, 586.561, 586.720, 646A.030, 650.210, 777.770, 801.465
and 830.700; and repealing ORS 71.1090, 71.2070, 71.2080,
72.2080, 72A.2070 and 77.6040.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 71.1010 is amended to read:
71.1010. { + (1) + }This chapter and ORS chapters 72, 72A,
73, 74, 74A, 75, 77, 78 and 79 may be cited as { + the + }
Uniform Commercial Code.
{ + (2) This chapter may be cited as Uniform Commercial
Code-General Provisions. + }
SECTION 2. ORS 71.1020 is amended to read:
71.1020. { - (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. - } { + This chapter
applies to a transaction to the extent that the transaction is
governed by ORS chapter 72, 72A, 73, 74, 74A, 75, 77, 78 or
79. + }
SECTION 3. ORS 71.1030 is amended to read:
71.1030. { - 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. - }
{ + (1) The Uniform Commercial Code must be liberally
construed and applied to promote its underlying purposes and
policies, which are:
(a) To simply, 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; and
(c) To make uniform the law among the various jurisdictions.
(2) 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 and
other validating or invalidating cause, supplement its
provisions. + }
SECTION 4. ORS 71.1050 is amended to read:
71.1050. { - (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 agricultural liens. - } { + If any
provision or clause of the Uniform Commercial Code or application
to any person or circumstance is held invalid, the invalidity
does not affect other provisions or applications of the Uniform
Commercial Code that can be given effect without the invalid
provision or application, and to this end the provisions of the
Uniform Commercial Code are severable. + }
SECTION 5. ORS 71.1060 is amended to read:
71.1060. { - (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. - } { +
In the Uniform Commercial Code, unless the statutory context
otherwise requires:
(1) Words in the singular number include the plural, and those
in the plural include the singular; and
(2) Words of any gender also refer to any other gender. + }
SECTION 6. ORS 71.1070 is amended to read:
71.1070. { - 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. - } { + The unit and section
captions, though set forth in the Uniform Commercial Code, are
not part of the statutory law of Oregon. + }
SECTION 7. ORS 71.1080 is amended to read:
71.1080. { - 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. - } { + This
chapter modifies, limits and supersedes the federal Electronic
Signatures in Global and National Commerce Act, 15 U.S.C. 7001 et
seq., except that nothing in this chapter modifies, limits or
supersedes section 7001(c) of that Act or authorizes electronic
delivery of any of the notices described in section 7003(b) of
that Act. + }
SECTION 8. ORS 71.2010 is amended to read:
71.2010. { + (1) Unless the context otherwise requires, words
or phrases defined in this section, or in the additional
definitions contained in other chapters of the Uniform Commercial
Code that apply to particular chapters or parts thereof, have the
meanings stated. + }
{ + (2) + } Subject to { - additional - } definitions
contained in other
{ - sections - } { + chapters + } 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: - } { + that apply to particular chapters or
parts thereof: + }
{ - (1) - } { + (a) + } '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) - } { + (b) + } 'Aggrieved party' means a party
entitled to
{ - resort to - } { + pursue + } a remedy.
{ - (3) - } { + (c) + } 'Agreement { + , + } ' { + as
distinguished from 'contract,' + } means the bargain of the
parties in fact as found in their language or { - by
implication - } { + inferred + } from other circumstances
including { - course of dealing or usage of trade or course of
performance - } { + course of performance, course of dealing or
usage of trade + } as provided in { - ORS 71.2050 and
72.2080 - } { + section 16 of this 2009 Act + }. { - 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) - } { + (d) + } 'Bank' means { - any - } { +
a + } person engaged in the business of banking { + and includes
a savings bank, savings and loan association, credit union and
trust company + }.
{ - (5) - } { + (e) + } 'Bearer' means { - the - } { +
a + } person { + in control of a negotiable electronic document
of title or a person + } in possession of { - an - } { + a
negotiable + } instrument, { + negotiable tangible + } document
of title or { + certificated + } security { + that is + }
payable to bearer or indorsed in blank.
{ - (6) - } { + (f) + } 'Bill of lading' means a
document { + of title + } evidencing the receipt of goods for
shipment issued by a person engaged in the business of { +
directly or indirectly + } transporting or forwarding goods { + .
The term does not include a warehouse receipt. + }
{ - , 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) - } { + (g) + } 'Branch' includes a separately
incorporated foreign branch of a bank.
{ - (8) - } { + (h) + } 'Burden of establishing' a fact
means the burden of persuading the { - triers - } { +
trier + } of fact that the existence of the fact is more probable
than its nonexistence.
{ - (9) - } { + (i) + } '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. { + 'Buyer in
ordinary course of business' does not include + } 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) - } { + (j) + } 'Conspicuous { + , + } '
{ - : - } { + with reference to a term, means + } { - A term
or clause is conspicuous when it is - } so written { + ,
displayed or presented + } that a reasonable person against
{ - whom - } { + which + } 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 - }
{ + a + } decision { - by - } { + for + } the court. { +
Conspicuous terms include the following:
(A) A heading in capitals equal to or greater in size in than
the surrounding text, or in contrasting type, font or color to
the surrounding text of the same or lesser size; and
(B) Language in the body of a record or display in larger type
than the surrounding text, or in contrasting type, font or color
to the surrounding text of the same size, or set off from the
surrounding text of the same size by symbols or other marks that
call attention to the language.
(k) 'Consumer' means an individual who enters into a
transaction primarily for personal, family or household
purposes. + }
{ - (11) - } { + (L) + } 'Contract { + , + } ' { + as
distinguished from 'agreement,' + } means the total legal
obligation { - which - } { + that + } results from the
parties' agreement as { - affected - } { + determined + } by
the Uniform Commercial Code { - and - } { + as supplemented
by + } any other applicable
{ - rules of law - } { + laws + }.
{ - (12) - } { + (m) + } '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) - } { + (n) + } 'Defendant' includes a person in
the position of defendant in a { - cross action or - }
counterclaim { + , cross claim + } { + or third party claim + }.
{ - (14) - } { + (o) + } 'Delivery { + , + } ' with respect
to { - instruments - } { + an electronic document of title
means voluntary transfer of control and with respect to an
instrument + }, { - documents - } { + a tangible document + }
of title, { + or + } chattel paper { - or certificated
securities - } means voluntary transfer of possession.
{ - (15) - } { + (p)(A) + } '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 - } { + means a record:
(i) That + } in the regular course of business or financing is
treated as adequately evidencing that the person in
possession { + or control + } of { - it - } { + the
record + } is entitled to receive, { + control, + } hold and
dispose of the { - document - } { + record + } and the goods
{ - it - } { + the record + } 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. - } { + ; and
(ii) That purports to be issued by or addressed to a bailee and
to cover goods in the bailee's possession that are either
identified or are fungible portions of an identified mass.
(B) The term includes a bill of lading, transport document,
dock warrant, dock receipt, warehouse receipt and order for
delivery of goods.
(C) 'Electronic document of title' means a document of title
evidenced by a record consisting of information stored in an
electronic medium.
(D) 'Tangible document of title' means a document of title
evidenced by a record consisting of information that is inscribed
on a tangible medium. + }
{ - (16) - } { + (q) + } 'Fault' means { + default, breach
or + } wrongful act { - , - } { + or + } 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. - }
{ + (r) 'Fungible goods' means:
(A) Goods of which any unit, by nature or usage of trade, is
the equivalent of any other like unit; or
(B) Goods that by agreement are treated as equivalent. + }
{ - (18) - } { + (s) + } 'Genuine' means free of forgery or
counterfeiting.
{ - (19) - } { + (t) + } 'Good faith { + , + } ' { +
except as otherwise provided in ORS chapter 75, + } means honesty
in fact { - in the conduct or transaction concerned. - } { +
and the observance of reasonable commercial standards of fair
dealing. + }
{ - (20) - } { + (u) + } '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. - }
{ + (A) The person in possession of a negotiable instrument
that is payable either to bearer or to an identified person that
is the person in possession;
(B) The person in possession of a negotiable tangible document
of title if the goods are deliverable either to bearer or to the
order of the person in possession; or
(C) The person in control of a negotiable electronic document
of title. + }
{ - (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) - } { + (v) + } { - ' Insolvency proceedings'
includes any - } { + ' Insolvency proceeding' includes an + }
assignment for the benefit of creditors or other
{ - proceedings - } { + proceeding + } 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. - }
{ + (w) 'Insolvent' means:
(A) Having generally ceased to pay debts in the ordinary course
of business other than as a result of bona fide dispute;
(B) Being unable to pay debts as they become due; or
(C) Being insolvent within the meaning of federal bankruptcy
law. + }
{ - (24) - } { + (x) + } 'Money' means a medium of
exchange { + currently + } authorized or adopted by a domestic
or foreign government { + . The term + } { - and - } includes
a monetary unit of account established by an intergovernmental
organization or by agreement between two or more
{ - nations - } { + countries + }.
{ - (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. - }
{ + (y) 'Organization' means a person other than an
individual.
(z) 'Party,' as distinguished from 'third party,' means a
person that has engaged in a transaction or made an agreement
subject to the Uniform Commercial Code.
(aa) 'Person' means an individual, corporation, business trust,
estate, trust, partnership, limited liability company,
association, joint venture, government, governmental subdivision,
agency or instrumentality, public corporation or any other legal
or commercial entity.
(bb) 'Present value' means the amount as of a date certain of
one or more sums payable in the future, discounted to the date
certain by use of either an interest rate specified by the
parties if that rate is not manifestly unreasonable at the time
the transaction is entered into or, if an interest rate is not so
specified, a commercially reasonable rate that takes into account
the facts and circumstances at the time the transaction is
entered into. + }
{ - (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) - } { + (cc) + } 'Purchase' { - includes - }
{ + means + } taking by sale, { + lease, + }discount,
negotiation, mortgage, pledge, lien, security interest, issue or
reissue, gift or any other voluntary transaction creating an
interest in property.
{ - (33) - } { + (dd) + } 'Purchaser' means a person
{ - who - } { + that + } takes by purchase.
{ + (ee) 'Record' means information that is inscribed on a
tangible medium or that is stored in an electronic or other
medium and is retrievable in perceivable form. + }
{ - (34) - } { + (ff) + } '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. - }
{ + (gg) 'Representative' means a person empowered to act for
another, including an agent, an officer of a corporation or
association and a trustee, executor, or administrator of an
estate.
(hh) 'Right' includes remedy. + }
{ - (37)(a) - } { + (ii)(A) + } 'Security interest' means
an interest in personal property or fixtures which secures
payment or performance of an obligation. { - The term also - }
{ + 'Security interest' + } 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.
{ + (B) + } { + ' Security interest' does not include + }
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.
{ + (C) + } 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.
{ + (D) + } The retention or reservation of title by a seller
of goods notwithstanding shipment or delivery to the buyer
{ - (ORS 72.4010) - } { + under ORS 72.4010 + } is limited in
effect to a reservation of a 'security interest. '
{ + (E) + } Whether a transaction { + in the form of a lease
creates a security interest is determined pursuant to ORS
71.2030. + } { - 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) - } { + (jj) + } 'Send' in connection with
{ - any - } { + a + } writing { + , record + } or notice
means { + :
(A) + } 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. - } { + ; or
(B) In any other way to cause to be received any record or
notice within the time it would have arrived if properly
sent. + }
{ - (39) - } { + (kk) + } 'Signed' includes { + using + }
any symbol executed or adopted { - by a party - } with present
intention to { - authenticate - } { + adopt or accept + } a
writing.
{ - (40) 'Surety' includes guarantor. - }
{ - (41) 'Telegram' includes a message transmitted by radio,
teletype, cable, any mechanical method of transmission, or the
like. - }
{ + (LL) 'State' means a state of the United States, the
District of Columbia, Puerto Rico, the United States Virgin
Islands or any territory or insular possession subject to the
jurisdiction of the United States.
(mm) 'Surety' includes a guarantor or other secondary
obligor. + }
{ - (42) - } { + (nn) + } 'Term' means { - that - } { +
a + } portion of an agreement
{ - which - } { + that + } relates to a particular matter.
{ + (oo) 'Unauthorized signature' means a signature made
without actual, implied or apparent authority. The term includes
a forgery. + }
{ - (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) - } { + (pp) + } 'Warehouse receipt' means a
{ - receipt - } { + document of title + } issued by a person
engaged in the business of storing goods for hire.
{ - (46) 'Written' or 'writing' - }
{ + (qq) 'Writing' + } includes printing, typewriting or any
other intentional reduction to tangible form. { + ' Written'
has a corresponding meaning. + }
SECTION 9. ORS 71.2020 is amended to read:
71.2020. { - 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. - } { + (1) Subject to subsection (6) of this
section, a person has notice of a fact if the person:
(a) Has actual knowledge of it;
(b) 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, has reason to know that it exists.
(2) 'Knowledge' means actual knowledge. 'Knows' has a
corresponding meaning.
(3) 'Discover,' 'learn' or words of similar import refer to
knowledge rather than to reason to know.
(4) A person notifies or gives a notice or notification to
another person by taking such steps as may be reasonably required
to inform the other person in ordinary course, whether or not the
other person actually comes to know of it.
(5) Subject to subsection (6) of this section, a person
receives a notice or notification when:
(a) It comes to the person's attention; or
(b) It is duly delivered in a form reasonable under the
circumstances at the place of business through which the contract
was made or at another location held out by the person as the
place for receipt of such communications.
(6) Notice, knowledge or a notice or notification received by
an organization is effective for a particular transaction from
the time it is brought to the attention of the individual
conducting that transaction and, in any event, from the time it
would have been brought to the individual's attention if the
organization had exercised due diligence. An organization
exercises due diligence if it maintains reasonable routines for
communicating significant information to the person conducting
the transaction and there is reasonable compliance with the
routines. Due diligence does not require an individual acting for
the organization to communicate information unless the
communication is part of the individual's regular duties or the
individual has reason to know of the transaction and that the
transaction would be materially affected by the information. + }
SECTION 10. ORS 71.2030 is amended to read:
71.2030. { - Every contract or duty within the Uniform
Commercial Code imposes an obligation of good faith in its
performance or enforcement. - } { + (1) Whether a transaction
in the form of a lease creates a lease or security interest is
determined by the facts of each case.
(2) A transaction in the form of a lease creates a security
interest if the consideration that 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 and is 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 for 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 for nominal additional
consideration upon compliance with the lease agreement.
(3) A transaction in the form of a lease does not create a
security interest merely because:
(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;
(c) The lessee agrees to pay, with respect to the goods, taxes,
insurance, filing, recording or registration fees or service or
maintenance costs;
(d) The lessee has an option to renew the lease or to become
the owner of the goods;
(e) 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
(f) 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.
(4) 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. Additional
consideration is not nominal if:
(a) 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
(b) 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.
(5) The remaining economic life of the goods and reasonably
predictable fair market rent, fair market value or cost of
performing under the lease agreement must be determined with
reference to the facts and circumstances at the time the
transaction is entered into. + }
SECTION 11. ORS 71.2040 is amended to read:
71.2040. { - (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. - } { + Except as otherwise provided in ORS
chapters 73, 74 and 75, a person gives value for rights if the
person acquires them:
(1) 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 charge-back is provided for in
the event of difficulties in collection;
(2) As security for, or in total or partial satisfaction of, a
preexisting claim;
(3) By accepting delivery under a preexisting contract for
purchase; or
(4) In return for any consideration sufficient to support a
simple contract. + }
SECTION 12. ORS 71.2050 is amended to read:
71.2050. { - (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. - }
{ + (1) Whether a time for taking an action required by the
Uniform Commercial Code is reasonable depends on the nature,
purpose and circumstances of the action.
(2) An action is taken seasonably if it is taken at or within
the time agreed or, if no time is agreed, at or within a
reasonable time. + }
SECTION 13. ORS 71.2060 is amended to read:
71.2060. { - (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. - } { + Whenever the Uniform Commercial Code
creates a presumption with respect to a fact, or provides that a
fact is presumed, the trier of fact must find the existence of
the fact unless and until evidence is introduced that supports a
finding of its nonexistence. + }
SECTION 13a. { + Sections 14 to 23 of this 2009 Act are added
to and made a part of the Uniform Commercial Code. + }
SECTION 14. { + (1) Except as provided 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.
(2) In the absence of such an agreement effective under
subsection (1) of this section and except as provided in
subsection (3) of this section, the Uniform Commercial Code
applies to transactions bearing an appropriate relation to this
state.
(3) If one of the following provisions of the Uniform
Commercial Code specifies the applicable law, that provision
governs and a contrary agreement is effective only to the extent
permitted by the law 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 agricultural liens. + }
SECTION 15. { + (1) Except as otherwise provided in subsection
(2) of this section or elsewhere in the Uniform Commercial Code,
the effect of provisions of the Uniform Commercial Code may be
varied by agreement.
(2) The obligations of good faith, diligence, reasonableness
and care prescribed by the Uniform Commercial Code may not be
disclaimed by agreement. The parties, by agreement, may determine
the standards by which the performance of those obligations is to
be measured if those standards are not manifestly unreasonable.
Whenever the Uniform Commercial Code requires an action to be
taken within a reasonable time, a time that is not manifestly
unreasonable may be fixed by agreement.
(3) The presence in certain provisions of the Uniform
Commercial Code of the phrase 'unless otherwise agreed,' or words
of similar import, does not imply that the effect of other
provisions may not be varied by agreement under this section. + }
SECTION 16. { + (1) A 'course of performance' is a sequence of
conduct between the parties to a particular transaction that
exists if:
(a) The agreement of the parties with respect to the
transaction involves repeated occasions for performance by a
party; and
(b) The other party, with knowledge of the nature of the
performance and opportunity for objection to it, accepts the
performance or acquiesces in it without objection.
(2) A 'course of dealing' is a sequence of conduct concerning
previous transactions between the parties to a particular
transaction that is fairly to be regarded as establishing a
common basis of understanding for interpreting the parties'
expressions and other conduct.
(3) 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 the practice or method
will be observed with respect to the transaction in question. The
existence and scope of the usage must be proved as fact. If it is
established that the usage is embodied in a trade code or similar
record, the interpretation of the record is a question of law.
(4) A course of performance or course of dealing between the
parties or usage of trade in the vocation or trade in which the
parties are engaged or of which they are or should be aware is
relevant in ascertaining the meaning of the parties' agreement,
may give particular meaning to specific terms of the agreement
and may supplement or qualify the terms of the agreement. A usage
of trade applicable in the place in which part of the performance
under the agreement is to occur may be so utilized as to that
part of the performance.
(5) Except as otherwise provided in subsection (6) of this
section, the express terms of an agreement and any applicable
course of performance, course of dealing or usage of trade must
be construed whenever reasonable as consistent with each other.
If such a construction is unreasonable:
(a) Express terms prevail over course of performance, course of
dealing and usage of trade;
(b) Course of performance prevails over course of dealing and
usage of trade; and
(c) Course of dealing prevails over usage of trade.
(6) Subject to ORS 72.2090, a course of performance is relevant
to show a waiver or modification of any term inconsistent with
the course of performance.
(7) Evidence of a relevant usage of trade offered by one party
is not admissible unless that party has given the other party
notice that the court finds sufficient to prevent unfair surprise
to the other party. + }
SECTION 17. { + Every contract or duty within the Uniform
Commercial Code imposes an obligation of good faith in its
performance and enforcement. + }
SECTION 18. { + (1) The remedies provided by the Uniform
Commercial Code must 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 consequential damages,
special damages or penal damages may not 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 the
right or obligation specifies a different and limited effect. + }
SECTION 19. { + A claim or right arising out of an alleged
breach may be discharged in whole or in part without
consideration by agreement of the aggrieved party in an
authenticated record. + }
SECTION 20. { + 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 is prima facie evidence of the document's own
authenticity and genuineness and of the facts stated in the
document by the third party. + }
SECTION 21. { + (1) A party that 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. + }
SECTION 22. { + A term providing that one party or that
party's successor in interest may accelerate payment or
performance or require collateral or additional collateral 'at
will' or when the party 'deems itself insecure,' or words of
similar import, means that the party has power to do so only if
that 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 which the power has been
exercised. + }
SECTION 23. { + An obligation may be issued as subordinated to
performance of another obligation of the person obligated, or a
creditor may subordinate its right to performance of an
obligation by agreement with either the person obligated or
another creditor of the person obligated. Subordination does not
create a security interest as against either the common debtor or
a subordinated creditor. + }
SECTION 24. ORS 72.1030 is amended to read:
72.1030. (1) In this chapter unless the context otherwise
requires:
(a) 'Buyer' means a person who buys or contracts to buy goods.
{ - (b) 'Good faith' in the case of a merchant means honesty
in fact and the observance of reasonable commercial standards of
fair dealing in the trade. - }
{ - (c) - } { + (b) + } 'Livestock' means equines, cattle,
sheep, goats, llamas, alpacas and swine.
{ - (d) - } { + (c) + } 'Receipt' of goods means taking
physical possession of them.
{ - (e) - } { + (d) + } 'Seller' means a person who sells
or contracts to sell goods.
(2) Other definitions applying to this chapter, and the
sections in which they appear are:
(a) 'Acceptance,' as defined in ORS 72.6060.
(b) 'Banker's credit,' as defined in ORS 72.3250.
(c) 'Between merchants,' as defined in ORS 72.1040.
(d) 'Cancellation,' as defined in ORS 72.1060 (4).
(e) 'Commercial unit,' as defined in ORS 72.1050.
(f) 'Confirmed credit,' as defined in ORS 72.3250.
(g) 'Conforming to contract,' as defined in ORS 72.1060.
(h) 'Contract for sale,' as defined in ORS 72.1060.
(i) 'Cover,' as defined in ORS 72.7120.
(j) 'Entrusting,' as defined in ORS 72.4030.
(k) 'Financing agency,' as defined in ORS 72.1040.
(L) 'Future goods,' as defined in ORS 72.1050.
(m) 'Goods,' as defined in ORS 72.1050.
(n) 'Identification,' as defined in ORS 72.5010.
(o) 'Installment contract,' as defined in ORS 72.6120.
(p) 'Letter of credit,' as defined in ORS 72.3250.
(q) 'Lot,' as defined in ORS 72.1050.
(r) 'Merchant,' as defined in ORS 72.1040.
(s) 'Overseas,' as defined in ORS 72.3230.
(t) 'Person in position of seller,' as defined in ORS 72.7070.
(u) 'Present sale,' as defined in ORS 72.1060.
(v) 'Sale,' as defined in ORS 72.1060.
(w) 'Sale on approval,' as defined in ORS 72.3260.
(x) 'Sale or return,' as defined in ORS 72.3260.
(y) 'Termination,' as defined in ORS 72.1060.
(3) { + ' Control' as provided in section 54 of this 2009 Act
and + }the following definitions in other series of sections
apply to this chapter:
(a) 'Check,' as defined in ORS 73.0104.
(b) 'Consignee,' as defined in ORS 77.1020.
(c) 'Consignor,' as defined in ORS 77.1020.
(d) 'Consumer goods,' as defined in ORS 79.0102.
(e) 'Dishonor,' as defined in ORS 73.0502.
(f) 'Draft,' as defined in ORS 73.0104.
(4) In addition, ORS chapter 71 contains general definitions
and principles of construction and interpretation applicable
throughout this chapter.
SECTION 25. ORS 72.1040 is amended to read:
72.1040. (1) 'Merchant' means a person who deals in goods of
the kind or otherwise by occupation purports to have knowledge or
skill peculiar to the practices or goods involved in the
transaction or to whom such knowledge or skill may be attributed
by employment of an agent or broker or other intermediary who by
occupation purports to have such knowledge or skill.
(2) 'Financing agency' means a bank, finance company or other
person who in the ordinary course of business makes advances
against goods or documents of title or who by arrangement with
either the seller or the buyer intervenes in ordinary course to
make or collect payment due or claimed under the contract for
sale, as by purchasing or paying the seller's draft or making
advances against it or by merely taking it for collection whether
or not documents of title accompany { + or are associated
with + } the draft. 'Financing agency' includes also a bank or
other person who similarly intervenes between persons who are in
the position of seller and buyer in respect to the goods.
(3) 'Between merchants' means in any transaction with respect
to which both parties are chargeable with the knowledge or skill
of merchants.
SECTION 26. ORS 72.2020 is amended to read:
72.2020. Terms with respect to which the confirmatory memoranda
of the parties agree or which are otherwise set forth in a
writing intended by the parties as a final expression of their
agreement with respect to such terms as are included therein may
not be contradicted by evidence of any prior agreement or of a
contemporaneous oral agreement but may be explained or
supplemented:
(1) By course of { + performance, course of + } dealing or
usage of trade as provided in { + section 16 of this 2009
Act + } { - ORS 71.2050 or by course of performance as provided
in ORS 72.2080 - } ; and
(2) By evidence of consistent additional terms unless the court
finds the writing to have been intended also as a complete and
exclusive statement of the terms of the agreement.
SECTION 27. ORS 72.3100 is amended to read:
72.3100. Unless otherwise agreed:
(1) Payment is due at the time and place at which the buyer is
to receive the goods even though the place of shipment is the
place of delivery; { - and - }
(2) If the seller is authorized to send the goods the seller
may ship them under reservation, and may tender the documents of
title, but, pursuant to ORS 72.5130, the buyer may inspect the
goods after their arrival before payment is due unless such
inspection is inconsistent with the terms of the contract;
{ - and - }
(3) If delivery is authorized and made by way of documents of
title otherwise than by subsection (2) of this section then
payment is due { + , regardless of where the goods are to be
received:
(a) + } At the time and place at which the buyer is to receive
{ + delivery of + }the { + tangible + } documents { + ; or
(b) At the time the buyer is to receive delivery of the
electronic documents and at the seller's place of business or, if
none, the seller's residence; and + } { - regardless of where
the goods are to be received; and - }
(4) Where the seller is required or authorized to ship the
goods on credit the credit period runs from the time of shipment
but postdating the invoice or delaying its dispatch will
correspondingly delay the starting of the credit period.
SECTION 28. ORS 72.3230 is amended to read:
72.3230. (1) Where the contract contemplates overseas shipment
and contains a term C.I.F. or C. and F. or F.O.B. vessel, the
seller unless otherwise agreed must obtain a negotiable bill of
lading stating that the goods have been loaded on board or, in
the case of a term C.I.F. or C. and F., received for shipment.
(2) Where in a case within subsection (1) of this section a
{ + tangible + } bill of lading has been issued in a set of
parts, unless otherwise agreed if the documents are not to be
sent from abroad the buyer may demand tender of the full set;
otherwise only one part of the bill of lading need be tendered.
Even if the agreement expressly requires a full set:
(a) Due tender of a single part is acceptable within the
provisions of ORS 72.5080 (1) on cure of improper delivery; and
(b) Even though the full set is demanded, if the documents are
sent from abroad the person tendering an incomplete set may
nevertheless require payment upon furnishing an indemnity which
the buyer in good faith deems adequate.
(3) A shipment by water or by air or a contract contemplating
such shipment is 'overseas' in so far as by usage of trade or
agreement it is subject to the commercial, financing or shipping
practices characteristic of international deep water commerce.
SECTION 29. ORS 72.4010 is amended to read:
72.4010. Each provision of this chapter with regard to the
rights, obligations and remedies of the seller, the buyer,
purchasers or other third parties applies irrespective of title
to the goods except where the provision refers to such title. In
so far as situations are not covered by the other provisions of
this chapter and matters concerning title become material the
following rules apply:
(1) Title to goods cannot pass under a contract for sale prior
to their identification to the contract as provided in ORS
72.5010, and unless otherwise explicitly agreed the buyer
acquires by their identification a special property as limited by
the Uniform Commercial Code. Any retention or reservation by the
seller of the title (property) in goods shipped or delivered to
the buyer is limited in effect to a reservation of a security
interest. Subject to these provisions and to the provisions of
ORS chapter 79 on secured transactions, title to goods passes
from the seller to the buyer in any manner and on any conditions
explicitly agreed on by the parties.
(2) Unless otherwise explicitly agreed title passes to the
buyer at the time and place at which the seller completes
performance with reference to the physical delivery of the goods,
despite any reservation of a security interest and even though a
document of title is to be delivered at a different time or
place; and in particular and despite any reservation of a
security interest by the bill of lading:
(a) If the contract requires or authorizes the seller to send
the goods to the buyer but does not require the seller to deliver
them at destination, title passes to the buyer at the time and
place of shipment; but
(b) If the contract requires delivery at destination, title
passes on tender there.
(3) Unless otherwise explicitly agreed where delivery is to be
made without moving the goods:
(a) If the seller is to deliver a { + tangible + } document of
title, title passes at the time when and the place where the
seller delivers { - such documents - } { + the document and
if the seller is to deliver an electronic document of title,
title passes when the seller delivers the document + }; or
(b) If the goods are at the time of contracting already
identified and no documents { + of title + } are to be
delivered, title passes at the time and place of contracting.
(4) When livestock has been delivered under a contract of sale
and is transported by private, common or contract carrier, if on
the accompanying brand inspection certificate or memorandum of
brand inspection certificate the seller has noted that as
consideration for the sale of the livestock a draft, check,
certificate of deposit or note has been given, title does not
pass until the instrument is paid.
(5) A rejection or other refusal by the buyer to receive or
retain the goods, whether or not justified, or a justified
revocation of acceptance revests title to the goods in the
seller. Such revesting occurs by operation of law and is not a
'sale. '
SECTION 30. ORS 72.5030 is amended to read:
72.5030. (1) Tender of delivery requires that the seller put
and hold conforming goods at the buyer's disposition and give the
buyer any notification reasonably necessary to enable the buyer
to take delivery. The manner, time and place for tender are
determined by the agreement and this chapter, and in particular:
(a) Tender must be at a reasonable hour, and if it is of goods
they must be kept available for the period reasonably necessary
to enable the buyer to take possession; but
(b) Unless otherwise agreed the buyer must furnish facilities
reasonably suited to the receipt of the goods.
(2) Where the case is within ORS 72.5040 respecting shipment
tender requires that the seller comply with its provisions.
(3) Where the seller is required to deliver at a particular
destination tender requires that the seller comply with
subsection (1) of this section and also in any appropriate case
tender documents as described in subsections (4) and (5) of this
section.
(4) Where goods are in the possession of a bailee and are to be
delivered without being moved:
(a) Tender requires that the seller either tender a negotiable
document of title covering such goods or procure acknowledgment
by the bailee of the buyer's right to possession of the goods;
but
(b) Tender to the buyer of a nonnegotiable document of title or
of a { - written direction to - } { + record directing + }
the bailee to deliver is sufficient tender unless the buyer
seasonably objects, and { + except as otherwise provided in ORS
chapter 79 + } receipt by the bailee of notification of the
buyer's rights fixes those rights as against the bailee and all
third persons; but risk of loss of the goods and of any failure
by the bailee to honor the nonnegotiable document of title or to
obey the direction remains on the seller until the buyer has had
a reasonable time to present the document or direction, and a
refusal by the bailee to honor the document or to obey the
direction defeats the tender.
(5) Where the contract requires the seller to deliver
documents:
(a) The seller must tender all such documents in correct form,
except as provided in ORS 72.3230 (2) with respect to bills of
lading in a set; and
(b) Tender through customary banking channels is sufficient and
dishonor of a draft accompanying { + or associated with + } the
documents constitutes nonacceptance or rejection.
SECTION 31. ORS 72.5050 is amended to read:
72.5050. (1) Where the seller has identified goods to the
contract by or before shipment:
(a) The procurement by the seller of a negotiable bill of
lading to the order of the seller or otherwise reserves in the
seller a security interest in the goods. The procurement of the
seller of the bill to the order of a financing agency or of the
buyer indicates in addition only the seller's expectation of
transferring that interest to the person named.
(b) A nonnegotiable bill of lading to the seller or nominee of
the seller reserves possession of the goods as security but
except in a case of conditional delivery as provided in ORS
72.5070 (2) a nonnegotiable bill of lading naming the buyer as
consignee reserves no security interest even though the seller
retains possession { + or control + } of the bill of lading.
(2) When shipment by the seller with reservation of a security
interest is in violation of the contract for sale it constitutes
an improper contract for transportation within ORS 72.5040 but
impairs neither the rights given to the buyer by shipment and
identification of the goods to the contract nor the seller's
powers as a holder of a negotiable document { + of title + }.
SECTION 32. ORS 72.5060 is amended to read:
72.5060. (1) A financing agency by paying or purchasing for
value a draft which relates to a shipment of goods acquires to
the extent of the payment or purchase and in addition to its own
rights under the draft and any document of title securing it any
rights of the shipper in the goods including the right to stop
delivery and the shipper's right to have the draft honored by the
buyer.
(2) The right to reimbursement of a financing agency which has
in good faith honored or purchased the draft under commitment to
or authority from the buyer is not impaired by subsequent
discovery of defects with reference to any relevant document
which was apparently regular { - on its face - } .
SECTION 33. ORS 72.5090 is amended to read:
72.5090. (1) Where the contract requires or authorizes the
seller to ship the goods by carrier:
(a) If it does not require the seller to deliver them at a
particular destination, the risk of loss passes to the buyer when
the goods are duly delivered to the carrier even though the
shipment is under reservation as provided in ORS 72.5050; but
(b) If it does require the seller to deliver them at a
particular destination and the goods are there duly tendered
while in the possession of the carrier, the risk of loss passes
to the buyer when the goods are there duly so tendered as to
enable the buyer to take delivery.
(2) Where the goods are held by a bailee to be delivered
without being moved, the risk of loss passes to the buyer:
(a) On { + the buyer's + } receipt { - by the buyer - }
of { + possession or control of + } a negotiable document of
title covering the goods; { - or - }
(b) On acknowledgment by the bailee of the buyer's right to
possession of the goods; or
(c) After the buyer's receipt of { + possession or control
of + } a nonnegotiable document of title or other
{ - written - } direction to deliver { + in a record + }, as
provided in ORS 72.5030 (4)(b).
(3) In any case not within subsection (1) or (2) of this
section, the risk of loss passes to the buyer on receipt by the
buyer of the goods if the seller is a merchant; otherwise the
risk passes to the buyer on tender of delivery.
(4) The provisions of this section are subject to contrary
agreement of the parties and to the provisions of ORS 72.3270 on
sale on approval and ORS 72.5100 on effect of breach on risk of
loss.
SECTION 34. ORS 72.6050 is amended to read:
72.6050. (1) The buyer's failure to state in connection with
rejection a particular defect which is ascertainable by
reasonable inspection precludes the buyer from relying on the
unstated defect to justify rejection or to establish breach:
(a) Where the seller could have cured it if stated seasonably;
or
(b) Between merchants when the seller has after rejection made
a request in writing for a full and final written statement of
all defects on which the buyer proposes to rely.
(2) Payment against documents made without reservation of
rights precludes recovery of the payment for defects apparent
{ - on the face of - } { + in + } the documents.
SECTION 35. ORS 72.7050 is amended to read:
72.7050. (1) The seller may stop delivery of goods in the
possession of a carrier or other bailee when the seller discovers
the buyer to be insolvent as provided in ORS 72.7020 and may stop
delivery of carload, truckload, planeload or larger shipments of
express or freight when the buyer repudiates or fails to make a
payment due before delivery or if for any other reason the seller
has a right to withhold or reclaim the goods.
(2) As against such buyer the seller may stop delivery until:
(a) Receipt of the goods by the buyer; { - or - }
(b) Acknowledgment to the buyer by any bailee of the goods
except a carrier that the bailee holds the goods for the buyer;
{ - or - }
(c) Such acknowledgment to the buyer by a carrier by reshipment
or as { - warehouseman - } { + a warehouse + }; or
(d) Negotiation to the buyer of any negotiable document of
title covering the goods.
(3)(a) To stop delivery the seller must so notify as to enable
the bailee by reasonable diligence to prevent delivery of the
goods.
(b) After such notification the bailee must hold and deliver
the goods according to the directions of the seller but the
seller is liable to the bailee for any ensuing charges or
damages.
(c) If a negotiable document of title has been issued for goods
the bailee is not obliged to obey a notification to stop until
surrender { + of possession or control + } of the document.
(d) A carrier who has issued a nonnegotiable bill of lading is
not obliged to obey a notification to stop received from a person
other than the consignor.
SECTION 36. ORS 72A.1030 is amended to read:
72A.1030. (1) As used in this chapter, unless the context
otherwise requires:
(a) 'Buyer in ordinary course of business' means a person who
in good faith and without knowledge that the sale to the person
is in violation of the ownership rights or security interest or
leasehold interest of a third party in the goods buys in ordinary
course from a person in the business of selling goods of that
kind but does not include a pawnbroker. 'Buying' may be for cash
or by exchange of other property or on secured or unsecured
credit and includes { - receiving - } { + acquiring + } goods
or documents of title under a preexisting contract for sale but
does not include a transfer in bulk or as security for or in
total or partial satisfaction of a money debt.
(b) 'Cancellation' occurs when either party puts an end to the
lease contract for default by the other party.
(c) 'Commercial unit' means such a unit of goods as by
commercial usage is a single whole for purposes of lease and
division of which materially impairs its character or value on
the market or in use. A 'commercial unit' may be a single
article, as a machine, or a set of articles, as a suite of
furniture or a line of machinery, or a quantity, as a gross or
carload, or any other unit treated in use or in the relevant
market as a single whole.
(d) 'Conforming goods' or 'performance under a lease contract'
means goods or performance that are in accordance with the
obligations under the lease contract.
(e) 'Consumer lease' means a lease that a lessor regularly
engaged in the business of leasing or selling makes to a lessee
who is an individual and who takes under the lease primarily for
a personal, family or household purpose, if the total payments to
be made under the lease contract, excluding payments for options
to renew or buy, do not exceed $25,000.
(f) 'Fault' means wrongful act, omission, breach or default.
(g) 'Finance lease' means a lease in which the lessor does not
select, manufacture or supply the goods, the lessor acquires the
goods or the right to possession and use of the goods in
connection with the lease, and either:
(A) The lessee receives a copy of the contract evidencing the
lessor's purchase of the goods on or before signing the lease
contract;
(B) The lessee's approval of the contract evidencing the
lessor's purchase of the goods is a condition to effectiveness of
the lease contract;
(C) The lessor informs the lessee in writing of the identity of
the supplier unless the lessee has selected the supplier and
directed the lessor to purchase the goods from the supplier;
(D) The lessor informs the lessee in writing that the lessee
may have rights under the contract evidencing the lessor's
purchase of the goods and the lessor advises the lessee in
writing to contact the supplier for a description of any such
rights; or
(E) The lease contract discloses all warranties and other
rights provided to the lessee by the lessor and supplier in
connection with the lease contract and informs the lessee that
there are no warranties or other rights provided to the lessee by
the lessor and supplier other than those disclosed in the lease
contract.
(h) 'Goods' means all things that are movable at the time of
identification to the lease contract, or are fixtures as provided
in ORS 72A.3090, but 'goods' does not include money, documents,
instruments, accounts, chattel paper, general intangibles or
minerals or the like, including oil and gas, before extraction.
'Goods' also includes the unborn young of animals.
(i) 'Installment lease contract' means a lease contract that
authorizes or requires the delivery of goods in separate lots to
be separately accepted, even though the lease contract contains a
clause 'each delivery is a separate lease' or its equivalent.
(j) 'Lease' means a transfer of the right to possession and use
of goods for a term in return for consideration, but a sale,
including a sale on approval or a sale or return, or retention or
creation of a security interest is not a lease. Unless the
context clearly indicates otherwise, 'lease' includes a sublease.
(k) 'Lease agreement' means the bargain, with respect to the
lease, of the lessor and the lessee in fact as found in the
language or by implication from other circumstances including
course of dealing or usage of trade or course of performance as
provided in this chapter. Unless the context clearly indicates
otherwise, 'lease agreement' includes a sublease agreement.
(L) 'Lease contract' means the total legal obligation that
results from the lease agreement as affected by this chapter and
any other applicable rules of law. Unless the context clearly
indicates otherwise, 'lease contract' includes a sublease
contract.
(m) 'Leasehold interest' means the interest of the lessor or
the lessee under a lease contract.
(n) 'Lessee' means a person who acquires the right to
possession and use of goods under a lease. Unless the context
clearly indicates otherwise, 'lessee' includes a sublessee.
(o) 'Lessee in ordinary course of business' means a person who
in good faith and without knowledge that the lease to the person
is in violation of the ownership rights or security interest or
leasehold interest of a third party in the goods leases in
ordinary course from a person in the business of selling or
leasing goods of that kind but does not include a pawnbroker. '
Leasing' may be for cash or by exchange of other property or on
secured or unsecured credit and includes { - receiving - }
{ + acquiring + } goods or documents of title under a
preexisting lease contract but does not include a transfer in
bulk or as security for or in total or partial satisfaction of a
money debt.
(p) 'Lessor' means a person who transfers the right to
possession and use of goods under a lease. Unless the context
clearly indicates otherwise, 'lessor' includes a sublessor.
(q) 'Lessor's residual interest' means the lessor's interest in
the goods after expiration, termination or cancellation of the
lease contract.
(r) 'Lien' means a charge against or interest in goods to
secure payment of a debt or performance of an obligation, but '
lien' does not include a security interest.
(s) 'Lot' means a parcel or a single article that is the
subject matter of a separate lease or delivery, whether or not it
is sufficient to perform the lease contract.
(t) 'Merchant lessee' means a lessee that is a merchant with
respect to goods of the kind subject to the lease.
(u) '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 was not manifestly
unreasonable at the time the transaction was 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.
(v) 'Purchase' includes taking by sale, lease, mortgage,
security interest, pledge, gift or any other voluntary
transaction creating an interest in goods.
(w) 'Sublease' means a lease of goods the right to possession
and use of which was acquired by the lessor as a lessee under an
existing lease.
(x) 'Supplier' means a person from whom a lessor buys or leases
goods to be leased under a finance lease.
(y) 'Supply contract' means a contract under which a lessor
buys or leases goods to be leased.
(z) 'Termination' occurs when either party pursuant to a power
created by agreement or law puts an end to the lease contract
otherwise than for default.
(2) Other definitions applying to this chapter and the sections
in which they appear are:
(a) 'Accessions' as defined in ORS 72A.3100.
(b) 'Account' as defined in ORS 79.0102.
(c) 'Between merchants' as defined in ORS 72.1040.
(d) 'Buyer' as defined in ORS 72.1030.
(e) 'Chattel paper' as defined in ORS 79.0102.
(f) 'Construction mortgage' as defined in ORS 72A.3090.
(g) 'Consumer goods' as defined in ORS 79.0102.
(h) 'Document' as defined in ORS 79.0102.
(i) 'Encumbrance' as defined in ORS 72A.3090.
(j) 'Entrusting' as defined in ORS 72.4030.
(k) 'Fixture filing' as defined in ORS 72A.3090.
(L) 'Fixtures' as defined in ORS 72A.3090.
(m) 'General intangible' as defined in ORS 79.0102.
{ - (n) 'Good faith' as defined in ORS 72.1030. - }
{ - (o) - } { + (n) + } 'Instrument' as defined in ORS
79.0102.
{ - (p) - } { + (o) + } 'Merchant' as defined in ORS
72.1040.
{ - (q) - } { + (p) + } 'Mortgage' as defined in ORS
79.0102.
{ - (r) - } { + (q) + } 'Purchase money lease' as defined
in ORS 72A.3090.
{ - (s) - } { + (r) + } 'Pursuant to commitment' as defined
in ORS 79.0102.
{ - (t) - } { + (s) + } 'Receipt' as defined in ORS
72.1030.
{ - (u) - } { + (t) + } 'Sale' as defined in ORS 72.1060.
{ - (v) - } { + (u) + } 'Sale on approval' as defined in
ORS 72.3260.
{ - (w) - } { + (v) + } 'Sale or return' as defined in ORS
72.3260.
{ - (x) - } { + (w) + } 'Seller' as defined in ORS 72.1030.
(3) In addition, ORS chapter 71 contains general definitions
and principles of construction and interpretation applicable
throughout this chapter.
SECTION 37. ORS 72A.5010 is amended to read:
72A.5010. (1) Whether the lessor or the lessee is in default
under a lease contract is determined by the lease agreement and
this chapter.
(2) If the lessor or the lessee is in default under the lease
contract, the party seeking enforcement has rights and remedies
as provided in this chapter and, except as limited by this
chapter, as provided in the lease agreement.
(3) If the lessor or the lessee is in default under the lease
contract, the party seeking enforcement may reduce the party's
claim to judgment, or otherwise enforce the lease contract by
self-help or any available judicial procedure or nonjudicial
procedure, including administrative proceeding, arbitration, or
the like, in accordance with this chapter.
(4) Except as otherwise provided in { - ORS 71.1060 - } { +
section 18 (1) of this 2009 Act + }, this chapter or the lease
agreement, the rights and remedies referred to in subsections (2)
and (3) of this section are cumulative.
(5) If the lease agreement covers both real property and goods,
the party seeking enforcement may proceed under ORS 72A.5010 to
72A.5310 as to the goods, or under other applicable law as to
both the real property and the goods in accordance with that
party's rights and remedies in respect of the real property, in
which case ORS 72A.5010 to 72A.5310 do not apply.
SECTION 38. ORS 72A.5140 is amended to read:
72A.5140. (1) In rejecting goods, a lessee's failure to state a
particular defect that is ascertainable by reasonable inspection
precludes the lessee from relying on the defect to justify
rejection or to establish default:
(a) If, stated seasonably, the lessor or the supplier could
have cured it under ORS 72A.5130; or
(b) Between merchants if the lessor or the supplier after
rejection has made a request, in writing, for a full and final
written statement of all defects on which the lessee proposes to
rely.
(2) A lessee's failure to reserve rights when paying rent or
other consideration against documents precludes recovery of the
payment for defects apparent { - on the face of - } { +
in + } the documents.
SECTION 39. ORS 72A.5180 is amended to read:
72A.5180. (1) After a default by a lessor under the lease
contract of the type described in ORS 72A.5080, or, if agreed,
after other default by the lessor, the lessee may cover by making
any purchase or lease of or contract to purchase or lease goods
in substitution for those due from the lessor.
(2) Except as otherwise provided in ORS 72A.5030 with respect
to damages liquidated in the lease agreement or otherwise
determined pursuant to agreement of the parties under ORS
{ - 71.1020 and - } 72A.5030 { + and section 15 of this 2009
Act + }, if a lessee's cover is by a lease agreement
substantially similar to the original lease agreement and the new
lease agreement is made in good faith and in a commercially
reasonable manner, the lessee may recover from the lessor as
damages:
(a) The present value, as of the date of the commencement of
the term of the new lease agreement, of the rent under the new
lease agreement applicable to that period of the new lease term
which is comparable to the then remaining term of the original
lease agreement minus the present value as of the same date of
the total rent for the then remaining lease term of the original
lease agreement; and
(b) Any incidental or consequential damages, less expenses
saved in consequence of the lessor's default.
(3) If a lessee's cover is by lease agreement that for any
reason does not qualify for treatment under subsection (2) of
this section, or is by purchase or otherwise, the lessee may
recover from the lessor as if the lessee had elected not to cover
and ORS 72A.5190 governs.
SECTION 40. ORS 72A.5190 is amended to read:
72A.5190. (1) Except as otherwise provided in ORS 72A.5030 with
respect to damages liquidated in the lease agreement or otherwise
determined pursuant to agreement of the parties under ORS
{ - 71.1020 and - } 72A.5030 { + and section 15 of this 2009
Act + }, if a lessee elects not to cover or a lessee elects to
cover and the cover is by lease agreement that for any reason
does not qualify for treatment under ORS 72A.5180, or is by
purchase or otherwise, the measure of damages for nondelivery or
repudiation by the lessor or for rejection or revocation of
acceptance by the lessee is the present value, as of the date of
the default, of the then market rent minus the present value as
of the same date of the original rent, computed for the remaining
lease term of the original lease agreement, together with
incidental and consequential damages, less expenses saved in
consequence of the lessor's default.
(2) Market rent is to be determined as of the place for tender
or, in cases of rejection after arrival or revocation of
acceptance, as of the place of arrival.
(3) Except as otherwise agreed, if the lessee has accepted
goods and given notification under ORS 72A.5160, the measure of
damages for nonconforming tender or delivery or other default by
a lessor is the loss resulting in the ordinary course of events
from the lessor's default as determined in any manner that is
reasonable together with incidental and consequential damages,
less expenses saved in consequence of the lessor's default.
(4) Except as otherwise agreed, the measure of damages for
breach of warranty is the present value at the time and place of
acceptance of the difference between the value of the use of the
goods accepted and the value if they had been as warranted for
the lease term, unless special circumstances show proximate
damages of a different amount, together with incidental and
consequential damages, less expenses saved in consequence of the
lessor's default or breach of warranty.
SECTION 41. ORS 72A.5260 is amended to read:
72A.5260. (1) A lessor may stop delivery of goods in the
possession of a carrier or other bailee if the lessor discovers
the lessee to be insolvent and may stop delivery of carload,
truckload, planeload or larger shipments of express or freight if
the lessee repudiates or fails to make a payment due before
delivery, whether for rent, security or otherwise under the lease
contract, or for any other reason the lessor has a right to
withhold or take possession of the goods.
(2) In pursuing its remedies under subsection (1) of this
section, the lessor may stop delivery until:
(a) Receipt of the goods by the lessee;
(b) Acknowledgment to the lessee by any bailee of the goods,
except a carrier, that the bailee holds the goods for the lessee;
or
(c) Such an acknowledgment to the lessee by a carrier via
reshipment or as { - warehouseman - } { + a warehouse + }.
(3)(a) To stop delivery, a lessor shall so notify as to enable
the bailee by reasonable diligence to prevent delivery of the
goods.
(b) After notification, the bailee shall hold and deliver the
goods according to the directions of the lessor, but the lessor
is liable to the bailee for any ensuing charges or damages.
(c) A carrier who has issued a nonnegotiable bill of lading is
not obliged to obey a notification to stop received from a person
other than the consignor.
SECTION 42. ORS 72A.5270 is amended to read:
72A.5270. (1) After a default by a lessee under the lease
contract of the type described in ORS 72A.5230 or after the
lessor refuses to deliver or takes possession of goods as
provided in ORS 72A.5250 or 72A.5260, or, if agreed, after other
default by a lessee, the lessor may dispose of the goods
concerned or the undelivered balance thereof by lease, sale or
otherwise.
(2) Except as otherwise provided with respect to damages
liquidated in the lease agreement as provided in ORS 72A.5040 or
otherwise determined pursuant to agreement of the parties as
provided in ORS { - 71.1020 and - } 72A.5030 { + and section
15 of this 2009 Act + }, if the disposition is by lease agreement
substantially similar to the original lease agreement and the new
lease agreement is made in good faith and in a commercially
reasonable manner, the lessor may recover from the lessee, as
damages, accrued and unpaid rent as of the date of the
commencement of the term of the new lease agreement, the present
value, as of the same date, of the total rent for the then
remaining lease term of the original lease agreement minus the
present value, as of the same date, of the rent under the new
lease agreement applicable to that period of the new lease term
which is comparable to the then remaining term of the original
lease agreement, and any incidental damages allowed under ORS
72A.5300, less expenses saved in consequence of the lessee's
default.
(3) If the lessor's disposition is by lease agreement that for
any reason does not qualify for treatment under subsection (2) of
this section or is by sale or otherwise, the lessor may recover
from the lessee as if the lessor had elected not to dispose of
the goods and ORS 72A.5280 governs.
(4) A subsequent buyer or lessee who buys or leases from the
lessor in good faith for value as a result of a disposition under
this section takes the goods free of the original lease contract
and any rights of the original lessee even though the lessor
fails to comply with one or more of the requirements of this
chapter.
(5) The lessor is not accountable to the lessee for any profit
made on any disposition. A lessee who has rightfully rejected or
justifiably revoked acceptance shall account to the lessor for
any excess over the amount of the lessee's security interest as
provided in ORS 72A.5080.
SECTION 43. ORS 72A.5280 is amended to read:
72A.5280. (1) Except as otherwise provided with respect to
damages liquidated in the lease agreement as provided in ORS
72A.5040 or otherwise determined pursuant to agreement of the
parties as provided in ORS { - 71.1020 and - } 72A.5030 { +
and section 15 of this 2009 Act + }, if a lessor elects to retain
the goods or a lessor elects to dispose of the goods and the
disposition is by lease agreement that for any reason does not
qualify for treatment under ORS 72A.5270, or is by sale or
otherwise, the lessor may recover from the lessee as damages for
a default of the type described in ORS 72A.5230, or, if agreed,
for other default of the lessee, accrued and unpaid rent as of
the date of default if the lessee has never taken possession of
the goods, or, if the lessee has taken possession of the goods,
as of the date the lessor repossesses the goods or an earlier
date on which the lessee makes a tender of the goods to the
lessor, the present value as of the date determined under this
section of the total rent for the then remaining lease term of
the original lease agreement minus the present value as of the
same date of the market rent at the place where the goods are
located computed for the same lease term and any incidental
damages allowed under ORS 72A.5300, less expenses saved in
consequence of the lessee's default.
(2) If the measure of damages provided in subsection (1) of
this section is inadequate to put a lessor in as good a position
as performance would have, the measure of damages is the present
value of the profit, including reasonable overhead, the lessor
would have made from full performance by the lessee, together
with any incidental damages allowed under ORS 72A.5300, due
allowance for costs reasonably incurred and due credit for
payments or proceeds of disposition.
SECTION 44. ORS 73.0103 is amended to read:
73.0103. (1) As used in this chapter:
(a) 'Acceptor' means a drawee who has accepted a draft.
(b) 'Drawee' means a person ordered in a draft to make payment.
(c) 'Drawer' means a person who signs or is identified in a
draft as a person ordering payment.
{ - (d) 'Good faith' means honesty in fact and the observance
of reasonable commercial standards of fair dealing. - }
{ - (e) - } { + (d) + } 'Maker' means a person who signs or
is identified in a note as a person undertaking to pay.
{ - (f) - } { + (e) + } 'Order' means a written instruction
to pay money signed by the person giving the instruction. The
instruction may be addressed to any person, including the person
giving the instruction, or to one or more persons jointly or in
the alternative but not in succession. An authorization to pay is
not an order unless the person authorized to pay is also
instructed to pay.
{ - (g) - } { + (f) + } 'Ordinary care' in the case of a
person engaged in business means observance of reasonable
commercial standards, prevailing in the area in which the person
is located, with respect to the business in which the person is
engaged. In the case of a bank that takes an instrument for
processing for collection or payment by automated means,
reasonable commercial standards do not require the bank to
examine the instrument if the failure to examine does not violate
the bank's prescribed procedures and the bank's procedures do not
vary unreasonably from general banking usage not disapproved
under this chapter or ORS chapter 74.
{ - (h) - } { + (g) + } 'Party' means a party to an
instrument.
{ - (i) - } { + (h) + } 'Promise' means a written
undertaking to pay money signed by the person undertaking to pay.
An acknowledgment of an obligation by the obligor is not a
promise unless the obligor also undertakes to pay the obligation.
{ - (j) - } { + (i) + } 'Prove' with respect to a fact
means to meet the burden of establishing the fact as defined in
ORS { - 71.2010 (8) - } { + 71.2010 (2)(h) + }.
{ - (k) - } { + (j) + } 'Remitter' means a person who
purchases an instrument from the issuer if the instrument is
payable to an identified person other than the purchaser.
(2) Other definitions applying to this chapter and the sections
in which they appear are:
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
'
Acceptance'
ORS 73.0409
'
Accommodated party'
ORS 73.0419
'
Accommodation party'
ORS 73.0419
'
Alteration'
ORS 73.0407
'
Anomalous indorsement'
ORS 73.0205
'
Blank indorsement'
ORS 73.0205
'
Cashier's check'
ORS 73.0104
'
Certificate of deposit'
ORS 73.0104
'
Certified check'
ORS 73.0409
'
Check'
ORS 73.0104
'
Consideration'
ORS 73.0303
'
Demand draft'
ORS 73.0104
'
Draft'
ORS 73.0104
'
Holder in due course'
ORS 73.0302
'
Incomplete instrument'
ORS 73.0115
'
Indorsement'
ORS 73.0204
'
Indorser'
ORS 73.0204
'
Instrument'
ORS 73.0104
'
Issue'
ORS 73.0105
'
Issuer'
ORS 73.0105
'
Negotiable instrument'
ORS 73.0104
'
Negotiation'
ORS 73.0201
'
Note'
ORS 73.0104
'
Payable at a definite time'
ORS 73.0108
'
Payable on demand'
ORS 73.0108
'
Payable to bearer'
ORS 73.0109
'
Payable to order'
ORS 73.0109
'
Payment'
ORS 73.0602
'
Person entitled to enforce'
ORS 73.0301
'
Presentment'
ORS 73.0501
'
Reacquisition'
ORS 73.0207
'
Special indorsement'
ORS 73.0205
'
Teller's check'
ORS 73.0104
'
Transfer of instrument'
ORS 73.0203
'
Traveler's check'
ORS 73.0104
'
Value'
ORS 73.0303
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
(3) The following definitions in ORS chapter 74 apply to this
chapter:
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
'
Bank'
ORS 74.1050
'
Banking day'
ORS 74.1040
'
Clearing house'
ORS 74.1040
'
Collecting bank'
ORS 74.1050
'
Depositary bank'
ORS 74.1050
'
Documentary draft'
ORS 74.1040
'
Intermediary bank'
ORS 74.1050
'
Item'
ORS 74.1040
'
Payor bank'
ORS 74.1050
'
Suspends payments'
ORS 74.1040
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
(4) In addition, ORS chapter 71 contains general definitions
and principles of construction and interpretation applicable
throughout this chapter.
SECTION 45. ORS 74.1040 is amended to read:
74.1040. (1) In this chapter, unless the context otherwise
requires:
(a) 'Account' means any deposit or credit account with a bank,
including a demand, time, savings, passbook, share draft or like
account, other than an account evidenced by a certificate of
deposit.
(b) 'Afternoon' means the period of a day between noon and
midnight.
(c) 'Banking day' has the meaning given that term in ORS
708A.650.
(d) 'Clearing house' means an association of banks or other
payors regularly clearing items.
(e) 'Customer' means a person having an account with a bank or
for whom a bank has agreed to collect items, including a bank
that maintains an account at another bank.
(f) 'Documentary draft' means a draft to be presented for
acceptance or payment if specified documents, certificated
securities defined in ORS 78.1020 or instructions for
uncertificated securities described in ORS 78.1020, or other
certificates, statements or the like are to be received by the
drawee or other payor before acceptance or payment of the draft.
(g) 'Draft' means a draft as defined in ORS 73.0104 or an item,
other than an instrument, that is an order.
(h) 'Drawee' means a person ordered in a draft to make payment.
(i) 'Item' means an instrument or a promise or order to pay
money handled by a bank for collection or payment. The term does
not include a payment order governed by ORS chapter 74A or a
credit or debit card slip.
(j) 'Midnight deadline' with respect to a bank is midnight on
its next banking day following the banking day on which it
receives the relevant item or notice or from which the time for
taking action commences to run, whichever is later.
(k) 'Settle' means to pay in cash, by clearing house
settlement, in a charge or credit or by remittance, or otherwise
as agreed. A settlement may be either provisional or final.
(L) 'Suspends payments' with respect to a bank means that it
has been closed by order of the supervisory authorities, that a
public officer has been appointed to take it over, or that it
ceases or refuses to make payments in the ordinary course of
business.
(2) Other definitions applying to this chapter and the sections
in which they appear are:
(a) 'Agreement for electronic presentment,' as defined in ORS
74.1100.
(b) 'Bank,' as defined in ORS 74.1050.
(c) 'Collecting bank,' as defined in ORS 74.1050.
(d) 'Depositary bank,' as defined in ORS 74.1050.
(e) 'Intermediary bank,' as defined in ORS 74.1050.
(f) 'Payor bank,' as defined in ORS 74.1050.
(g) 'Presenting bank,' as defined in ORS 74.1050.
(h) 'Presentment notice,' as defined in ORS 74.1100.
(3) { + ' Control' as provided in section 54 of this 2009 Act
and + }the following definitions in other sections apply to this
chapter:
(a) 'Acceptance,' as defined in ORS 73.0409.
(b) 'Alteration,' as defined in ORS 73.0407.
(c) 'Cashier's check,' as defined in ORS 73.0104.
(d) 'Certificate of deposit,' as defined in ORS 73.0104.
(e) 'Certified check,' as defined in ORS 73.0409.
(f) 'Check,' as defined in ORS 73.0104.
{ - (g) 'Good faith,' as defined in ORS 73.0103. - }
{ - (h) - } { + (g) + } 'Holder in due course,' as defined
in ORS 73.0302.
{ - (i) - } { + (h) + } 'Instrument,' as defined in ORS
73.0104.
{ - (j) - } { + (i) + } 'Notice of dishonor,' as defined in
ORS 73.0503.
{ - (k) - } { + (j) + } 'Order,' as defined in ORS 73.0103.
{ - (L) - } { + (k) + } 'Ordinary care,' as defined in ORS
73.0103.
{ - (m) - } { + (L) + } 'Person entitled to enforce,' as
defined in ORS 73.0301.
{ - (n) - } { + (m) + } 'Presentment,' as defined in ORS
73.0501.
{ - (o) - } { + (n) + } 'Promise,' as defined in ORS
73.0103.
{ - (p) - } { + (o) + } 'Prove,' as defined in ORS 73.0103.
{ - (q) - } { + (p) + } 'Teller's check,' as defined in ORS
73.0104.
{ - (r) - } { + (q) + } 'Unauthorized signature,' as
defined in ORS 73.0403.
(4) In addition, ORS chapter 71 contains general definitions
and principles of construction and interpretation applicable
throughout this chapter.
SECTION 46. ORS 74.2100 is amended to read:
74.2100. (1) A collecting bank has a security interest in an
item and in any accompanying documents or in the proceeds of
either:
(a) In case of an item deposited in an account, to the extent
to which credit given for the item has been withdrawn or applied;
(b) In case of an item for which it has given credit available
for withdrawal as of right, to the extent of the credit given,
whether or not the credit is drawn upon or there is a right of
charge-back; or
(c) If it makes an advance on or against the item.
(2) If credit given for several items received at one time or
pursuant to a single agreement is withdrawn or applied in part,
the security interest remains upon all the items, any
accompanying documents or the proceeds of either. For the purpose
of this action, credits first given are first withdrawn.
(3) Receipt by a collecting bank of a final settlement for an
item is a realization on its security interest in the item,
accompanying documents and proceeds. So long as the bank does not
receive final settlement for the item or give up possession of
the item or { + possession or control of the + } accompanying
documents for purposes other than collection, the security
interest continues to that extent and is subject to ORS chapter
79, but:
(a) No security agreements are necessary to make the security
interest enforceable under ORS 79.0203 (2)(c)(A);
(b) No filing is required to perfect the security interest; and
(c) The security interest has priority over conflicting
perfected security interests in the item, accompanying documents
or proceeds.
SECTION 46a. ORS 74A.1050 is amended to read:
74A.1050. (1) As used in this chapter:
(a) 'Authorized account' means a deposit account of a customer
in a bank designated by the customer as a source of payment of
payment orders issued by the customer to the bank. If a customer
does not so designate an account, any account of the customer is
an authorized account if payment of a payment order from that
account is not inconsistent with a restriction on the use of that
account.
(b) 'Bank' means a financial institution, as defined in ORS
706.008. A branch or separate office of a bank is a separate bank
for purposes of this chapter.
(c) 'Customer' means a person, including a bank, having an
account with a bank or from whom a bank has agreed to receive
payment orders.
(d) 'Funds-transfer business day' of a receiving bank means the
part of a day during which the receiving bank is open for the
receipt, processing and transmittal of payment orders and
cancellations and amendments of payment orders.
(e) 'Funds-transfer system' means a wire transfer network,
automated clearing house, or other communication system of a
clearing house or other association of banks through which a
payment order by a bank may be transmitted to the bank to which
the order is addressed.
{ - (f) 'Good faith' means honesty in fact and the observance
of reasonable commercial standards of fair dealing. - }
{ - (g) - } { + (f) + } 'Prove' with respect to a fact
means to meet the burden of establishing the fact.
(2) Other definitions applying to this chapter and the sections
in which they appear are:
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
'
Acceptance'
ORS 74A.2090
'
Beneficiary'
ORS 74A.1030
'
Beneficiary's bank'
ORS 74A.1030
'
Executed'
ORS 74A.3010
'
Execution date'
ORS 74A.3010
'
Funds transfer'
ORS 74A.1040
'
Funds-transfer system rule'
ORS 74A.5010
'
Intermediary bank'
ORS 74A.1040
'
Originator'
ORS 74A.1040
'
Originator's bank'
ORS 74A.1040
'
Payment by beneficiary's
bank to beneficiary'
ORS 74A.4050
'
Payment by originator to
beneficiary'
ORS 74A.4060
'
Payment by sender
to receiving bank'
ORS 74A.4030
'
Payment date'
ORS 74A.4010
'
Payment order'
ORS 74A.1030
'
Receiving bank'
ORS 74A.1030
'
Security procedure'
ORS 74A.2010
'
Sender'
ORS 74A.1030
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
(3) The following definitions in ORS chapter 74 apply to this
chapter and ORS 71.1010:
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
'
Clearing house'
ORS 74.1040
'
Item'
ORS 74.1040
'
Suspends payments'
ORS 74.1040
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
(4) In addition ORS chapter 71 contains general definitions and
principles of construction and interpretation applicable
throughout this chapter.
SECTION 47. ORS 74A.1060 is amended to read:
74A.1060. (1) The time of receipt of a payment order or
communication canceling or amending a payment order is determined
by the rules applicable to receipt of a notice stated in ORS
{ - 71.2010 (27) - } { + 71.2020 + }. A receiving bank may
fix a cut-off time or times on a funds-transfer business day for
the receipt and processing of payment orders and communications
canceling or amending payment orders. Different cut-off times may
apply to payment orders, cancellations or amendments, or to
different categories of payment orders, cancellations or
amendments. A cut-off time may apply to senders generally or
different cut-off times may apply to different senders or
categories of payment orders. If a payment order or communication
canceling or amending a payment order is received after the close
of a funds-transfer business day or after the appropriate cut-off
time on a funds-transfer business day, the receiving bank may
treat the payment order or communication as received at the
opening of the next funds-transfer business day.
(2) If this chapter refers to an execution date or payment date
or state a day on which a receiving bank is required to take
action, and the date or day does not fall on a funds-transfer
business day, the next day that is a funds-transfer business day
is treated as the date or day stated, unless the contrary is
stated in this chapter.
SECTION 48. ORS 74A.2040 is amended to read:
74A.2040. (1) If a receiving bank accepts a payment order
issued in the name of its customer as sender which is not
authorized and not effective as the order of the customer under
ORS 74A.2020 or not enforceable, in whole or in part, against the
customer under ORS 74A.2030, the bank shall refund any payment of
the payment order received from the customer to the extent the
bank is not entitled to enforce payment and shall pay interest on
the refundable amount calculated from the date the bank received
payment to the date of the refund. However, the customer is not
entitled to interest from the bank on the amount to be refunded
if the customer fails to exercise ordinary care to determine that
the order was not authorized by the customer and to notify the
bank of the relevant facts within a reasonable time not exceeding
90 days after the date the customer received notification from
the bank that the order was accepted or that the customer's
account was debited with respect to the order. The bank is not
entitled to any recovery from the customer on account of a
failure by the customer to give notification as stated in this
section.
(2) Reasonable time under subsection (1) of this section may be
fixed by agreement as stated in { - ORS 71.2040 - } { +
section 15 (2) of this 2009 Act + }, but the obligation of a
receiving bank to refund payment as stated in subsection (1) of
this section may not otherwise be varied by agreement.
SECTION 49. ORS 75.1030 is amended to read:
75.1030. (1) This chapter applies to letters of credit and to
certain rights and obligations arising out of transactions
involving letters of credit.
(2) The statement of a rule in this chapter does not by itself
require, imply or negate application of the same or different
rule to a situation not provided for, or to a person not
specified in this chapter.
(3) With the exception of this subsection, subsections (1) and
(4) of this section and ORS 75.1020 (1)(i) and (j), 75.1060 (4)
and 75.1140 (4), and except to the extent prohibited in { - ORS
71.1020 (3) - } { + section 15 of this 2009 Act + } and { +
ORS + } 75.1170 (4), the effect of this chapter may be varied by
agreement or by a provision stated or incorporated by reference
in an undertaking. A term in an agreement or undertaking
generally excusing liability or generally limiting remedies for
failure to perform obligations is not sufficient to vary
obligations prescribed by this chapter.
(4) Rights and obligations of an issuer to a beneficiary or a
nominated person under a letter of credit are independent of the
existence, performance or nonperformance of a contract or
arrangement out of which the letter of credit arises or which
underlies it, including contracts or arrangements between the
issuer and the applicant and between the applicant and the
beneficiary.
SECTION 50. ORS 77.1020 is amended to read:
77.1020. (1) In this chapter, unless the context otherwise
requires:
(a) 'Bailee' means { - the - } { + a + } person
{ - who - } { + that + } by a warehouse receipt, bill of
lading or other document of title acknowledges possession of
goods and contracts to deliver them.
{ + (b) 'Carrier' means a person that issues a bill of
lading. + }
{ - (b) - } { + (c) + } 'Consignee' means { - the - }
{ + a + }person named in a bill { + of lading + }to
{ - whom - } { + which + } or to whose order the bill promises
delivery.
{ - (c) - } { + (d) + } 'Consignor' means { - the - }
{ + a + } person named in a bill { + of lading + }as the
person from { - whom - } { + which + } the goods have been
received for shipment.
{ - (d) - } { + (e) + } 'Delivery order' means a
{ - written order - } { + record that contains an order + } to
deliver goods directed to a
{ - warehouseman - } { + warehouse + }, carrier or other
person { - who - } { + that + } in the ordinary course of
business issues warehouse receipts or bills of lading.
{ - (e) 'Document' means document of title as defined in ORS
71.2010. - }
(f) 'Goods' means all things { - which - } { + that + } are
treated as movable for the purposes of a contract { - of - }
{ + for + } storage or transportation.
(g) 'Issuer' means a bailee { - who - } { + that + } issues
a document { + of title or, in the case of + } { - except that
in relation to - } an unaccepted delivery order { + , + }
{ - it means - } the person { - who - } { + that + } orders
the possessor of goods to deliver. { - Issuer - } { + The
term + } includes
{ - any - } { + a + } person for { - whom - } { +
which + } an agent or employee purports to act in issuing a
document if the agent or employee has real or apparent authority
to issue documents, { - notwithstanding that - } { + even
if + } the issuer { - received no - } { + did not receive
any + } goods { + , + } { - or that - } the goods were
misdescribed { + , + } or { - that - } in any other respect
the agent or employee violated { + the issuer's + }
instructions.
{ + (h) 'Person entitled under the document' means the
holder, in the case of a negotiable document of title, or the
person to which delivery of the goods is to be made by the terms
of, or pursuant to instructions in a record under, a
nonnegotiable document of title.
(i) 'Record' means information that is inscribed on a tangible
medium or that is stored in an electronic or other medium and is
retrievable in perceivable form.
(j) 'Sign' means, with present intent to authenticate or adopt
a record:
(A) To execute or adopt a tangible symbol; or
(B) To attach to or logically associate with the record an
electronic sound, symbol or process.
(k) 'Shipper' means a person that enters into a contract of
transportation with a carrier. + }
{ - (h) - } { + (L) + } { - ' Warehouseman' is - } { +
'Warehouse' means + } a person engaged in the business of storing
goods for hire.
{ - (2) Other definitions applying to this chapter and the
sections in which they appear are: - }
{ - (a) 'Duly negotiate,' as defined in ORS 77.5010. - }
{ - (b) 'Person entitled under the document,' as defined in
ORS 77.4030 (4). - }
{ - (3) - } { + (2) + } Definitions in other { - sections
which apply - } { + chapters applying + } to this chapter and
the sections in which they appear are:
(a) 'Contract for sale,' as defined in ORS 72.1060.
{ - (b) 'Overseas,' as defined in ORS 72.3230. - }
{ + (b) 'Lessee in the ordinary course of business,' as
defined in ORS 72A.1030. + }
(c) 'Receipt' of goods, as defined in ORS 72.1030.
{ - (4) - } { + (3) + } In addition, ORS chapter 71
contains general definitions and principles of construction and
interpretation applicable throughout this chapter.
SECTION 51. ORS 77.1030 is amended to read:
77.1030. { - To the extent that any treaty or statute of the
United States, regulatory statute of this state or tariff,
classification or regulation filed or issued pursuant thereto is
applicable, the provisions of this chapter are subject
thereto. - } { + (1) This chapter is subject to any treaty or
statute of the United States or regulatory statute of this state
to the extent the treaty, statute or regulatory statute is
applicable.
(2) This chapter does not modify or repeal any law prescribing
the form or content of a document of title or the services or
facilities to be afforded by a bailee, or otherwise regulating a
bailee's business in respects not specifically treated in this
chapter. However, violation of such a law does not affect the
status of a document of title that otherwise is within the
definition of a document of title.
(3) This chapter modifies, limits and supersedes the federal
Electronic Signatures in Global and National Commerce Act, 15
U.S.C. 7001 et seq., except that nothing in this chapter
modifies, limits or supercedes 7001(c) of that Act or authorizes
electronic delivery of any of the notices described in section
7003(b) of that Act.
(4) To the extent there is a conflict between the Uniform
Electronic Transactions Act and this chapter, this chapter
governs. + }
SECTION 52. ORS 77.1040 is amended to read:
77.1040. (1) { - A warehouse receipt, bill of lading or
other - } { + Except as otherwise provided in subsection (3) of
this section, a + } document of title is negotiable { - : - }
{ - (a) - } if by its terms the goods are to be delivered to
bearer or to the order of a named person { + . + } { - ; or - }
{ - (b) Where recognized in overseas trade, if it runs to a
named person or assigns. - }
{ - (2) Any other document is nonnegotiable. A bill of lading
in which it is stated that the goods are consigned to a named
person is not made negotiable by a provision that the goods are
to be delivered only against a written order signed by the same
or another named person. - }
{ + (2) A document of title other than one described in
subsection (1) of this section is nonnegotiable. A bill of lading
that states that the goods are consigned to a named person is not
made negotiable by a provision that the goods are to be delivered
only against an order in a record signed by the same or another
named person.
(3) A document of title is nonnegotiable if, at the time it is
issued, the document has a conspicuous legend, however expressed,
that it is nonnegotiable. + }
SECTION 53. ORS 77.1050 is amended to read:
77.1050. { - The omission from ORS 77.2010 to 77.2100 of a
provision contained in ORS 77.3010 to 77.3090 or the omission
from ORS 77.3010 to 77.3090 of a provision contained in ORS
77.2010 to 77.2100 does not imply that a corresponding rule of
law is not applicable. - } { + (1) Upon request of a person
entitled under an electronic document of title, the issuer of the
electronic document may issue a tangible document of title as a
substitute for the electronic document if:
(a) The person entitled under the electronic document
surrenders control of the document to the issuer; and
(b) The tangible document when issued contains a statement that
it is issued in substitution for the electronic document.
(2) Upon issuance of a tangible document of title in
substitution for an electronic document of title in accordance
with subsection (1) of this section:
(a) The electronic document ceases to have any effect or
validity; and
(b) The person that procured issuance of the tangible document
warrants to all subsequent persons entitled under the tangible
document that the warrantor was a person entitled under the
electronic document when the warrantor surrendered control of the
electronic document to the issuer.
(3) Upon request of a person entitled under a tangible document
of title, the issuer of the tangible document may issue an
electronic document of title as a substitute for the tangible
document if:
(a) The person entitled under the tangible document surrenders
possession of the document to the issuer; and
(b) The electronic document when issued contains a statement
that it is issued in substitution for the tangible document.
(4) Upon issuance of an electronic document of title in
substitution for a tangible document of title in accordance with
subsection (3) of this section:
(a) The tangible document ceases to have any effect or
validity; and
(b) The person that procured issuance of the electronic
document warrants to all subsequent persons entitled under the
electronic document that the warrantor was a person entitled
under the tangible document when the warrantor surrendered
possession of the tangible document to the issuer. + }
SECTION 54. { + (1) A person has control of an electronic
document of title if a system employed for evidencing the
transfer of interests in the electronic document reliably
establishes that person as the person to which the electronic
document was issued or transferred.
(2) A system satisfies subsection (1) of this section, and a
person is deemed to have control of an electronic document of
title, if the document is created, stored and assigned in such a
manner that:
(a) A single authoritative copy of the document exists which is
unique, identifiable and, except as otherwise provided in
paragraphs (d), (e) and (f) of this subsection, unalterable;
(b) The authoritative copy identifies the person asserting
control as:
(A) The person to which the document was issued; or
(B) If the authoritative copy indicates that the document has
been transferred, the person to which the document was most
recently transferred;
(c) The authoritative copy is communicated to and maintained by
the person asserting control or a designated custodian;
(d) Copies or amendments that add or change an identified
assignee of the authoritative copy can be made only with the
consent of the person asserting control;
(e) Each copy of the authoritative copy and any copy of a copy
is readily identifiable as a copy that is not the authoritative
copy; and
(f) Any amendment of the authoritative copy is readily
identifiable as authorized or unauthorized. + }
SECTION 55. ORS 77.2010 is amended to read:
77.2010. (1) A warehouse receipt may be issued by any
{ - warehouseman - } { + warehouse + }.
(2) { - Where - } { + If + } goods { + , + } including
distilled spirits and agricultural commodities { + , + } are
stored under a statute requiring a bond against withdrawal or a
license for the issuance of receipts in the nature of warehouse
receipts, a receipt issued for the goods { - has like effect
as - } { + is deemed to be + } a warehouse receipt even
{ - though - } { + if + } issued by a person { - who - }
{ + that + } is the owner of the goods and is not a
{ - warehouseman - } { + warehouse + }.
SECTION 56. ORS 77.2020 is amended to read:
77.2020. (1) A warehouse receipt need not be in any particular
form.
(2) Unless a warehouse receipt { - embodies within its
written or printed terms - } { + provides for + } each of the
following, the
{ - warehouseman - } { + warehouse + } is liable for damages
caused { - by the omission - } to a person injured
{ - thereby - } { + by its omission + }:
(a) { + A statement of + }the location of the warehouse { +
facility + } where the goods are stored;
(b) The date of issue of the receipt;
(c) The { - consecutive number - } { + unique
identification code + } of the receipt;
(d) A statement whether the goods received will be delivered to
the bearer, to a { - specified - } { + named + } person, or
to a { - specified - } { + named + } person or { - the - }
{ + its + } order { - of that person - } ;
(e) The rate of storage and handling charges, { - except that
where - } { + unless + } goods are stored under a field
warehousing arrangement { + , in which case + } a statement of
that fact is sufficient on a nonnegotiable receipt;
(f) A description of the goods or { - of - } the packages
containing them;
(g) The signature of the { - warehouseman, which may be made
by the authorized agent of the warehouseman; - } { + warehouse
or its agent; + }
(h) If the receipt is issued for goods { - of which the
warehouseman is owner - } { + that the warehouse owns + },
either solely { + , + }
{ - or - } jointly or in common with others, { + a statement
of + } the fact of
{ - such - } { + that + } ownership; and
(i) A statement of the amount of advances made and of
liabilities incurred for which the { - warehouseman - } { +
warehouse + } claims a lien or security interest { + , + }
{ - pursuant to ORS 77.2090. If - } { + unless + } the precise
amount of { - such - } advances made or of { - such - }
liabilities incurred { - is - } , at the time of the issue of
the receipt, { + is + } unknown to the { - warehouseman - }
{ + warehouse + } or to { - the - } { + its + } agent
{ - of the warehouseman who issues it, - } { + that issued the
receipt, in which case + } a statement of the fact that advances
have been made or liabilities incurred and the purpose
{ - thereof - } { + of the advances or liabilities + } is
sufficient.
(3) A { - warehouseman - } { + warehouse + } may insert in
{ - a - } { + its + } receipt any { - other - } terms
{ - which - } { + that + } are not contrary to { - the
provisions of - } the Uniform Commercial Code and do not impair
{ - the - } { + its + } obligation of delivery { - as set
forth in - } { + under + } ORS 77.4030 or
{ - the - } { + its + } duty of care { - as set forth
in - } { + under + } ORS 77.2040. Any contrary { - provisions
shall be - } { + provision is + } ineffective.
SECTION 57. ORS 77.2030 is amended to read:
77.2030. A party to or purchaser for value in good faith of a
document of title { + , + } other than a bill of lading { + ,
that relies + }
{ - relying in either case - } upon the description
{ - therein - } of the goods { + in the document + } may
recover from the issuer damages caused by the nonreceipt or
misdescription of the goods, except to the extent that { + :
(1) + } The document conspicuously indicates that the issuer
does not know whether { - any part or - } all { + or part + }
of the goods in fact were received or conform to the
description, { + such + } as { - where - } { + a case in
which + } the description is in terms of marks or labels or kind,
quantity or condition, or the receipt or description is qualified
by 'contents, condition and quality unknown,' 'said to contain'
or { - the like - } { + words of similar import + }, if
{ - such - } { + the + } indication { - be - } { + is + }
true { - , - } { + ; + } or
{ + (2) + } The party or purchaser otherwise has notice { +
of the nonreceipt or misdescription + }.
SECTION 58. ORS 77.2040 is amended to read:
77.2040. (1) A { - warehouseman - } { + warehouse + } is
liable for damages for loss of or injury to the goods caused by
{ - the - } { + its + } failure { - of the warehouseman - }
to exercise { - such - } care { - in - } { + with + }
regard to
{ - them as - } { + the goods that + } a reasonably careful
person would exercise under { - like - } { + similar + }
circumstances { + . + } { - but - } Unless otherwise
agreed { + , + } the { - warehouseman - } { + warehouse + }
is not liable for damages { - which - } { + that + } could
not have been avoided by the exercise of { - such - } { +
that + } care.
(2) Damages may be limited by a term in the warehouse receipt
or storage agreement limiting the amount of liability in case of
loss or damage { - , and setting forth a specific liability per
article or item, or value per unit of weight, - } beyond which
the
{ - warehouseman shall not be liable; provided, however, that
such liability may on written - } { + warehouse is not liable.
Such a limitation is not effective with respect to the
warehouse's liability for conversion to its own use. On + }
request of the bailor { + in a record + } at the time of
signing { - such - } { + the + } storage agreement or within
a reasonable time after receipt of the warehouse receipt { + ,
the warehouse's liability may + } be increased on part or all of
the goods { - thereunder, - } { + covered by the storage
agreement or warehouse receipt. + } In { - which - } { +
this + } event { + , + } increased rates may be charged based on
{ - such - } { + an + } increased valuation { + of the
goods. + } { - , but that no such increase shall be permitted
contrary to a lawful limitation of liability contained in the
warehouseman's tariff, if any. No such limitation is effective
with respect to the warehouseman's liability for conversion to
the use of the warehouseman. - }
(3) Reasonable provisions as to the time and manner of
presenting claims and { - instituting - } { + commencing + }
actions based on the bailment may be included in the warehouse
receipt or { - tariff - } { + storage agreement + }.
(4) This section does not { + modify or + } repeal { - or
change - } any existing law or rule of law { - which - } { +
that + } imposes a higher responsibility upon the
{ - warehouseman - } { + warehouse + } or invalidates
{ + a + } contractual { - limitations which - } { +
limitation that + } would be permissible under this chapter.
SECTION 59. ORS 77.2050 is amended to read:
77.2050. A buyer in { - the - } ordinary course of business
of fungible goods sold and delivered by a { - warehouseman
who - } { + warehouse that + } is also in the business of buying
and selling such goods takes { + the goods + } free of any claim
under a warehouse receipt even { - though it - } { + if the
receipt is negotiable and + } has been duly negotiated.
SECTION 60. ORS 77.2060 is amended to read:
77.2060. (1) A { - warehouseman may on notifying - } { +
warehouse, by giving notice to + } the person on whose account
the goods are held and any other person known to claim an
interest in the goods { + , may + } require payment of any
charges and removal of the goods from the warehouse at the
termination of the period of storage fixed by the document { +
of title + }, or, if { - no - } { + a + } period is { +
not + } fixed, within a stated period not less than 30 days after
the { - notification - } { + warehouse gives notice + }. If
the goods are not removed before the date specified in the
{ - notification - } { + notice + }, the
{ - warehouseman - } { + warehouse + } may sell them { - in
accordance with the provisions of - } { + pursuant to + } ORS
77.2100 { + . + } { - on enforcement of a warehouseman's
lien. - }
(2) If a { - warehouseman - } { + warehouse + } in good
faith believes that
{ - the - } goods are about to deteriorate or decline in value
to less than the amount of { - the - } { + its + } lien
{ - of the warehouseman - } within the time
{ - prescribed - } { + provided + } in subsection (1) of this
section { - for notification, advertisement and sale, the
warehouseman - } { + and ORS 77.2100, the warehouse + } may
specify in the { - notification - } { + notice given under
subsection (1) of this section + } any reasonable shorter time
for removal of the goods and { + , + } { - in case - } { +
if + } the goods are not removed, may sell them at public sale
held not less than one week after a single advertisement or
posting.
(3) If as a result of a quality or condition of the goods of
which the { - warehouseman had no - } { + warehouse did not
have + } notice at the time of deposit the goods are a hazard to
other property { + , + } { - or to - } the warehouse { +
facilities + } or { - to - } { + other + } persons, the
{ - warehouseman - } { + warehouse + } may sell the goods at
public or private sale without advertisement { + or posting + }
on reasonable notification to all persons known to claim an
interest in the goods. If the
{ - warehouseman - } { + warehouse, + } after a reasonable
effort { + , + } is unable to sell the goods { - the
warehouseman - } { + it + } may dispose of them in any lawful
manner and { - shall incur no - } { + does not incur + }
liability by reason of { - such - } { + that + } disposition.
(4) { - The warehouseman must - } { + A warehouse shall + }
deliver the goods to any person entitled to them under this
chapter upon due demand made at any time { - prior to - } { +
before + } sale or other disposition under this section.
(5) { - The warehouseman - } { + A warehouse + } may
satisfy { - the - } { + its + } lien
{ - of the warehouseman - } from the proceeds of any sale or
disposition under this section but { - must - } { + shall + }
hold the balance for delivery on the demand of any person to
{ - whom - } { + which + } the { - warehouseman - }
{ + warehouse + } would have been bound to deliver the goods.
SECTION 61. ORS 77.2070 is amended to read:
77.2070. (1) Unless the warehouse receipt { + provides + }
otherwise { + , + }
{ - provides, a warehouseman must - } { + a warehouse
shall + } keep separate the goods covered by each receipt so as
to permit at all times identification and delivery of those goods
{ - except that - } { + . However, + } different lots of
fungible goods may be commingled.
(2) { + If different lots of + }fungible goods { - so - }
{ + are + } commingled { + , the goods + } are owned in common
by the persons entitled thereto and the { - warehouseman - }
{ + warehouse + } is severally liable to each owner for that
owner's share. { - Where - } { + If, + } because of
overissue { + , + } a mass of fungible goods is insufficient to
meet all the receipts { - which the warehouseman - } { + the
warehouse + } has issued against it, the persons entitled include
all holders to { - whom - } { + which + } overissued receipts
have been duly negotiated.
SECTION 62. ORS 77.2080 is amended to read:
77.2080. { - Where - } { + If + } a blank in a negotiable
{ + tangible + } warehouse receipt has been filled in without
authority, a { + good-faith + } purchaser for value and without
notice of the { - want - } { + lack + } of authority may treat
the insertion as authorized. Any other unauthorized alteration
leaves any { + tangible or electronic warehouse + } receipt
enforceable against the issuer according to its original tenor.
SECTION 63. ORS 77.2090 is amended to read:
77.2090. (1) A { - warehouseman - } { + warehouse + } has a
lien against the bailor on the goods covered by a warehouse
receipt or { + storage agreement or + }on the proceeds thereof
in { - the - } { + its + } possession { - of the
warehouseman - } for charges for storage or
transportation { + , + }
{ - ( - } including demurrage and terminal charges { - ) - } ,
insurance, labor { - , - } or { + other + } charges { + , + }
present or future { + , + } in relation to the goods, and for
expenses necessary for preservation of the goods or reasonably
incurred in their sale pursuant to law. If the person on whose
account the goods are held is liable for { - like - } { +
similar + } charges or expenses in relation to other goods
whenever deposited and it is stated in the { + warehouse + }
receipt { + or storage agreement + } that a lien is claimed for
charges and expenses in relation to other goods, the
{ - warehouseman - } { + warehouse + } also has a lien against
the { - person for such - } { + goods covered by the
warehouse receipt or storage agreement or on the proceeds thereof
in its possession for those + } charges and expenses whether or
not the other goods have been delivered by the
{ - warehouseman - } { + warehouse + }. { - But - } { +
However, as + } against a person to { - whom - } { +
which + } a negotiable warehouse receipt is duly
negotiated { + , + } a { - warehouseman's - } { +
warehouse's + } lien is limited to charges in an amount or at a
rate specified { - on - } { + in + } the { + warehouse + }
receipt or { + , + } if no charges are so specified { + , + }
{ - then - } to a reasonable charge for storage of the { +
specific + } goods covered by the receipt subsequent to the date
of the receipt.
(2) The { - warehouseman - } { + warehouse + } may also
reserve a security interest against the bailor for { - a - }
{ + the + } maximum amount specified on the receipt for charges
other than those specified in subsection (1) of this section,
such as for money advanced and interest. { - Such a - } { +
The + } security interest is governed by ORS chapter 79 { + . + }
{ - on secured transactions. - }
(3) A { - warehouseman's - } { + warehouse's + } lien for
charges and expenses under subsection (1) of this section or a
security interest under subsection (2) of this section is also
effective against { - all persons if the bailor was the legal
possessor of the goods at the time of deposit. - } { + any
person that so entrusted the bailor with possession of the goods
that a pledge of them by the bailor to a good-faith purchaser for
value would have been valid. However, the lien or security
interest is not effective against a person that before issuance
of a document of title had a legal interest or a perfected
security interest in the goods and that did not:
(a) Deliver or entrust the goods or any document of title
covering the goods to the bailor or the bailor's nominee with:
(A) Actual or apparent authority to ship, store or sell;
(B) Power to obtain delivery under ORS 77.4030; or
(C) Power of disposition under ORS 72.4030, 72A.3040 (2),
72A.3050 (2), 79.0320 or 79.0321 (3) or other statute or rule of
law; or
(b) Acquiesce in the procurement by the bailor or its nominee
of any document.
(4) A warehouse's lien on household goods for charges and
expenses in relation to the goods under subsection (1) of this
section is also effective against all persons if the depositor
was the legal possessor of the goods at the time of deposit. In
this subsection, 'household goods' means furniture, furnishings
or personal effects used by the depositor in a dwelling. + }
{ - (4) - } { + (5) + } A { - warehouseman loses the lien
of the warehouseman - } { + warehouse loses its lien + } on any
goods { - which the warehouseman - } { + that it + }
voluntarily delivers or { - which the warehouseman - }
unjustifiably refuses to deliver.
SECTION 64. ORS 77.2100 is amended to read:
77.2100. (1) Except as { + otherwise + } provided in
subsection (2) of this section, a { - warehouseman's - } { +
warehouse's + } lien may be enforced by public or private sale of
the goods { + , + } in { - bloc - } { + bulk + } or in
{ - parcels - } { + packages + }, at any time or place and on
any terms
{ - which - } { + that + } are commercially reasonable, after
notifying all persons known to claim an interest in the goods.
{ - Such - } { + The + } notification must include a statement
of the amount due, the nature of the proposed sale and the time
and place of any public sale. The fact that a better price could
have been obtained by a sale at a different time or in a
{ - different - } method { + different + } from that selected
by the { - warehouseman - } { + warehouse + } is not of
itself sufficient to establish that the sale was not made in a
commercially reasonable manner. { - If the warehouseman either
sells the goods - } { + The warehouse sells in a commercially
reasonable manner if the warehouse sells the goods + } in the
usual manner in any recognized market therefor, { - or if the
warehouseman - } sells at the price current in { - such - }
{ + that + } market at the time of sale { - , - } or { - if
the warehouseman has otherwise sold - } { + otherwise sells + }
in conformity with commercially reasonable practices among
dealers in the type of goods sold { + . + } { - , the
warehouseman has sold in a commercially reasonable manner. - } A
sale of more goods than apparently necessary to be offered to
{ - insure - } { + ensure + } satisfaction of the obligation
is not commercially reasonable except in cases covered by the
preceding sentence.
(2) A { - warehouseman's - } { + warehouse may enforce
its + } lien on goods other than goods stored by a merchant in
the course of { + its + } business { - may be enforced only as
follows: - } { + only if the following requirements are
satisfied: + }
(a) All persons known to claim an interest in the goods must be
notified.
{ - (b) The notification must be delivered in person or sent
by registered letter to the last-known address of any person to
be notified. - }
{ - (c) - } { + (b) + } The notification must include an
itemized statement of the claim, a description of the goods
subject to the lien, a demand for payment within a specified time
not less than 10 days after receipt of the notification, and a
conspicuous statement that unless the claim is paid within that
time the goods will be advertised for sale and sold by auction at
a specified time and place.
{ - (d) - } { + (c) + } The sale must conform to the terms
of the notification.
{ - (e) - } { + (d) + } The sale must be held at the
nearest suitable place to { - that - } where the goods are
held or stored.
{ - (f) - } { + (e) + } After the expiration of the time
given in the notification, an advertisement of the sale must be
published once a week for two weeks consecutively in a newspaper
of general circulation where the sale is to be held. The
advertisement must include a description of the goods, the name
of the person on whose account { - they - } { + the goods + }
are being held, and the time and place of the sale. The sale must
take place at least 15 days after the first publication. If there
is no newspaper of general circulation where the sale is to be
held, the advertisement must be posted at least 10 days before
the sale in not { - less - } { + fewer + } than six
conspicuous places in the neighborhood of the proposed sale.
(3) Before any sale pursuant to this section any person
claiming a right in the goods may pay the amount necessary to
satisfy the lien and the reasonable expenses incurred
{ - under - } { + in complying with + } this section. In that
event the goods { - must - } { + may + } not be sold
{ - , - } but must be retained by the { - warehouseman - }
{ + warehouse + } subject to the terms of the receipt and this
chapter.
(4) { - The warehouseman - } { + A warehouse + } may buy at
any public sale { + held + } pursuant to this section.
(5) A purchaser in good faith of goods sold to enforce a
{ - warehouseman's - } { + warehouse's + } lien takes the
goods free of any rights of persons against { - whom - } { +
which + } the lien was valid, despite { + the warehouse's
+ }noncompliance { - by the warehouseman with the requirements
of - } { + with + }this section.
(6) { - The warehouseman - } { + A warehouse + } may
satisfy { - the - } { + its + } lien
{ - of the warehouseman - } from the proceeds of any sale
pursuant to this section but { - must - } { + shall + } hold
the balance, if any, for delivery on demand to any person to
{ - whom the warehouseman - } { + which the warehouse + }
would have been bound to deliver the goods.
(7) The rights provided by this section { - shall be - }
{ + are + } in addition to all other rights allowed by law to a
creditor against a debtor.
(8) { - Where - } { + If + } a lien is on goods stored by a
merchant in the course of { + the merchant's + }
business { + , + } the lien may be enforced in accordance with
{ - either - } subsection (1) or (2) of this section.
(9) { - The warehouseman - } { + A warehouse + } is liable
for damages caused by failure to comply with the requirements for
sale under this section and in case of willful violation is
liable for conversion.
SECTION 65. ORS 77.3010 is amended to read:
77.3010. (1) A consignee of a nonnegotiable bill { - who - }
{ + of lading which + } has given value in good faith or a
holder to { - whom - } { + which + } a negotiable bill has
been duly negotiated relying { - in either case - } upon the
description { - therein - } of the goods { - , - } { + in
the bill + } or upon the date { - therein - } shown { + in
the bill + }, may recover from the issuer damages caused by the
misdating of the bill or the nonreceipt or misdescription of the
goods, except to the extent that the { - document - } { +
bill + } indicates that the issuer does not know whether any part
or all of the goods in fact were received or conform to the
description, { - as where - } { + such as in a case in
which + } the description is in terms of marks or labels or kind,
quantity or condition or the receipt or description is qualified
by ' contents or condition of contents of packages unknown,'
'said to contain,' 'shipper's weight, load and count' or
{ - the like - } { + words of similar import + }, if
{ - such - } { + that + } indication { - be - } { + is + }
true.
(2) { - When - } { + If + } goods are loaded by
{ - an - } { + the + } issuer { + of a bill of lading:
(a) + } { - who is a common carrier, the issuer must - }
{ + The issuer shall + } count the packages of goods if
{ - package freight - } { + shipped in packages + } and
ascertain the kind and quantity if { + shipped in + } bulk
{ - freight. - } { + ; and
(b) + } { - In such cases - } { + Words such as + }
'shipper's weight, load and count' or { - other - } words
{ + of similar import + } indicating that the description was
made by the shipper are ineffective except as to
{ - freight - } { + goods + } concealed { - by - } { +
in + } packages.
(3) { - When bulk freight is - } { + If bulk goods are + }
loaded by a shipper { - who - } { + that + } makes available
to the issuer { + of a bill of lading + } adequate facilities
for weighing { - such freight - } { + those goods + },
{ - an - } { + the + } issuer { - who is a common carrier
must - } { + shall + } ascertain the kind and quantity within a
reasonable time after receiving the { - written request of the
shipper - } { + shipper's request in a record + } to do so. In
{ - such cases - } { + that case, + } 'shipper's weight' or
other words of { - like purport - } { + similar import + }
are ineffective.
(4) The issuer { + of a bill of lading, by including + }
{ - may by inserting - } in the bill the words 'shipper's
weight, load and count' or { - other - } words of { - like
purport - } { + similar import, may + } indicate that the goods
were loaded by the shipper { - ; - } { + , + } and if
{ - such - } { + that + } statement { - be - } { + is + }
true { + , + } the issuer { - shall - } { + is + } not
{ - be - } liable for damages caused by the improper loading.
{ - But their - } { + However, + } omission { + of such
words + } does not imply liability for
{ - such - } damages { + caused by improper loading + }.
(5) { - The - } { + A + } shipper { - shall be deemed to
have guaranteed to the - } { + guarantees to an + } issuer the
accuracy at the time of shipment of the description, marks,
labels, number, kind, quantity, condition and weight, as
furnished by the shipper { - ; and - } { + . + } The shipper
shall indemnify the issuer against damage caused by inaccuracies
in { - such - } { + those + } particulars. { - The - }
{ + This + } right { - of the issuer to such indemnity shall
in no way - } { + of indemnity does not + } limit the
{ + issuer's + } responsibility { - and - } { + or + }
liability { - of the issuer - } under the contract of carriage
to any person other than the shipper.
SECTION 66. ORS 77.3020 is amended to read:
77.3020. (1) The issuer of a through bill of lading or other
document { + of title + } embodying an undertaking to be
performed in part by { - persons - } { + a person + } acting
as its { - agents - } { + agent + } or by
{ - connecting carriers - } { + a performing carrier + } is
liable to { - anyone - } { + any person + } entitled to
recover on the { + bill or other + } document for any breach by
{ - such other persons or by a connecting - } { + the other
person or the performing + } carrier of its obligation under the
{ + bill or other + } document { + . + } { - but - } { +
However, + } to the extent that the bill { + or other
document + } covers an undertaking to be performed overseas or in
territory not contiguous to the continental United States or an
undertaking including matters other than transportation { + , + }
this liability { + for breach by the other person or the
performing carrier + } may be varied by agreement of the parties.
(2) { - Where - } { + If + } goods covered by a through
bill of lading or other document { + of title + } embodying an
undertaking to be performed in part by { - persons - } { + a
person + } other than the issuer are received by { - any
such - } { + that + } person, the person is subject with
respect to
{ - the - } { + its own + } performance { - of the
person - } while the goods are in
{ - the - } { + its + } possession { - of the person - }
to the obligation of the issuer. The { + person's + } obligation
{ - of the person - } is discharged by delivery of the goods to
another { - such - } person pursuant to the { + bill or
other + } document { - , - } and does not include liability for
breach by any other { - such persons - } { + person + } or by
the issuer.
(3) The issuer of { - such - } { + a + } through bill of
lading or other document { + of title described in subsection
(1) of this section is + }
{ - shall be - } entitled to recover from the
{ - connecting - } { + performing + } carrier { + , + } or
{ - such - } other person in possession of the goods when the
breach of the obligation under the { + bill or other + }
document occurred { - , - } { + :
(a) + } The amount it may be required to pay to
{ - anyone - } { + any person + } entitled to recover on
the { + bill or other + } document
{ - therefor - } { + for the breach + }, as may be evidenced
by any receipt, judgment or transcript { - thereof, - } { +
of judgment; + } and
{ + (b) + } The amount of any expense reasonably incurred by
{ - it - } { + the issuer + }in defending any action
{ - brought - } { + commenced + } by { - anyone - } { +
any person + } entitled to recover on the { + bill or other + }
document
{ - therefor - } { + for the breach + }.
SECTION 67. ORS 77.3030 is amended to read:
77.3030. (1) Unless the bill of lading otherwise provides,
{ - the - } { + a + } carrier may deliver the goods to a
person or destination other than that stated in the bill or may
otherwise dispose of the goods { + , without liability for
misdelivery, + } on instructions from:
(a) The holder of a negotiable bill; { - or - }
(b) The consignor on a nonnegotiable bill { + , + }
{ - notwithstanding - } { + even if the consignee has given + }
contrary instructions { + ; + } { - from the consignee; or - }
(c) The consignee on a nonnegotiable bill in the absence of
contrary instructions from the consignor, if the goods have
arrived at the billed destination or if the consignee is in
possession of the { + tangible bill or in control of the
electronic + } bill; or
(d) The consignee on a nonnegotiable bill { + , + } if the
consignee is entitled as against the consignor to dispose of
{ - them - } { + the goods + }.
(2) Unless { - such - } instructions { + described in
subsection (1) of this section + } are { - noted on - } { +
included in + } a negotiable bill of lading, a person to
{ - whom - } { + which + } the bill is duly negotiated
{ - can - } { + may + } hold the bailee according to the
original terms.
SECTION 68. ORS 77.3040 is amended to read:
77.3040. (1) Except { - where - } { + as + } customary in
{ - overseas - } { + international + } transportation, a { +
tangible + } bill of lading { - must - } { + may + } not be
issued in a set of parts. The issuer is liable for damages caused
by violation of this subsection.
(2) { - Where a - } { + If a tangible + } bill of lading is
lawfully
{ - drawn - } { + issued + } in a set of parts, each of which
{ - is numbered - } { + contains an identification code + }
and { + is + } expressed to be valid only if the goods have not
been delivered against any other part, the whole of the parts
{ - constitute - } { + constitutes + } one bill.
(3) { - Where a - } { + If a tangible negotiable + } bill
of lading is lawfully issued in a set of parts and different
parts are negotiated to different persons, the title of the
holder to { - whom - } { + which + } the first due negotiation
is made prevails as to both the document { + of title + } and
the goods even { - though - } { + if + } any later holder may
have received the goods from the carrier in good faith and
discharged the carrier's obligation by { - surrender of the
part of the later holder. - } { + surrendering its part. + }
(4) { - Any - } { + A + } person { - who - } { +
that + } negotiates or transfers a single part of a { +
tangible + } bill of lading { - drawn - } { + issued + } in a
set is liable to holders of that part as if it were the whole
set.
(5) The bailee { - is obliged to - } { + shall + } deliver
in accordance with ORS 77.4010 to 77.4040 against the first
presented part of a { + tangible + }bill of lading lawfully
{ - drawn - } { + issued + } in a set. { - Such - }
Delivery { + in this manner + } discharges the bailee's
obligation on the whole bill.
SECTION 69. ORS 77.3050 is amended to read:
77.3050. (1) Instead of issuing a bill of lading to the
consignor at the place of shipment a carrier { - may - } at
the request of the consignor { + may + } procure the bill to be
issued at destination or at any other place designated in the
request.
(2) Upon request of { - anyone - } { + any person + }
entitled as against
{ - the - } { + a + } carrier to control the goods while in
transit and on surrender { + of possession or control + } of any
outstanding bill of lading or other receipt covering
{ - such - } { + the + } goods, the issuer { + , subject to
ORS 77.1050, + } may procure a substitute bill to be issued at
any place designated in the request.
SECTION 70. ORS 77.3070 is amended to read:
77.3070. (1) A carrier has a lien on the goods covered by a
bill of lading { + or on the proceeds thereof in the carrier's
possession + } for charges { - subsequent to - } { +
after + } the date of { - its - } { + the carrier's + }
receipt of the goods for storage or transportation { + , + }
{ - ( - } including demurrage and terminal charges { - ) - }
{ + , + } and for expenses necessary for preservation of the
goods incident to their transportation or reasonably incurred in
their sale pursuant to law. { - But - } { + However, + }
against a purchaser for value of a negotiable bill of
lading { + , + } a carrier's lien is limited to charges stated in
the bill or the applicable tariffs { - , - } or { + , + } if no
charges are stated { + , + } { - then to - } a reasonable
charge.
(2) A lien for charges and expenses under subsection (1) of
this section on goods { - which - } { + that + } the carrier
was required by law to receive for transportation is effective
against the consignor or any person entitled to the goods unless
the carrier had notice that the consignor lacked authority to
subject the goods to { - such - } { + those + } charges and
expenses. Any other lien under subsection (1) of this section is
effective against the consignor and any person
{ - who - } { + that + } permitted the bailor to have control
or possession of the goods unless the carrier had notice that the
bailor lacked
{ - such - } authority.
(3) A carrier loses { - the lien of the carrier - } { + its
lien + } on any goods { - which the carrier - } { + that
it + } voluntarily delivers or { - which the carrier - }
unjustifiably refuses to deliver.
SECTION 71. ORS 77.3080 is amended to read:
77.3080. (1) A carrier's lien { + on goods + } may be enforced
by public or private sale of the goods, in { - bloc or in
parcels - } { + bulk or in packages + }, at any time or place
and on any terms { - which - } { + that + } are commercially
reasonable, after notifying all persons known to claim an
interest in the goods. { - Such - } { + The + } notification
must include a statement of the amount due, the nature of the
proposed sale and the time and place of any public sale. The fact
that a better price could have been obtained by a sale at a
different time or in a { - different - } method { +
different + } from that selected by the carrier is not of itself
sufficient to establish that the sale was not made in a
commercially reasonable manner. { - If - } The carrier
{ - either - } sells { - the - } goods in { - the
usual - } { + a commercially reasonable + } manner { + if the
carrier sells the goods in the usual manner + } in any recognized
market therefor { + , + } { - or if the carrier - } sells at
the price current in { - such - } { + that + } market at the
time of sale or { - if the carrier has otherwise sold - } { +
otherwise sells + } in conformity with commercially reasonable
practices among dealers in the type of goods sold { + . + }
{ - the carrier has sold in a commercially reasonable
manner. - } A sale of more goods than apparently necessary to be
offered to { - insure - } { + ensure + } satisfaction of the
obligation is not commercially reasonable except in cases covered
by the preceding sentence.
(2) Before any sale pursuant to this section any person
claiming a right in the goods may pay the amount necessary to
satisfy the lien and the reasonable expenses incurred
{ - under - } { + in complying with + } this section. In that
event { + , + } the goods { - must - } { + may + } not be
sold { - , - } but must be retained by the carrier subject to
the terms of the bill { + of lading + } and this chapter.
(3) { - The - } { + A + } carrier may buy at any public
sale pursuant to this section.
(4) A purchaser in good faith of goods sold to enforce a
carrier's lien takes the goods free of any rights of persons
against { - whom - } { + which + } the lien was valid,
despite { + the carrier's + } noncompliance { - by the carrier
with the requirements of - } { + with + } this section.
(5) { - The - } { + A + } carrier may satisfy { - the - }
{ + its + } lien { - of the carrier - } from the proceeds of
any sale pursuant to this section but { - must - } { +
shall + } hold the balance, if any, for delivery on demand to any
person to { - whom - } { + which + } the carrier would have
been bound to deliver the goods.
(6) The rights provided by this section { - shall be - }
{ + are + } in addition to all other rights allowed by law to a
creditor against a debtor { - of the creditor - } .
(7) A carrier's lien may be enforced { - in accordance
with - } { + pursuant to + } either subsection (1) of this
section or the procedure set forth in ORS 77.2100 (2).
(8) { - The - } { + A + } carrier is liable for damages
caused by failure to comply with the requirements for sale under
this section and in case of willful violation is liable for
conversion.
SECTION 72. ORS 77.3090 is amended to read:
77.3090. (1) A carrier { - who - } { + that + } issues a
bill of lading { + , + } whether negotiable or
nonnegotiable { + , + } { - must - } { + shall + } exercise
the degree of care in relation to the goods which a reasonably
careful person would exercise under { - like - } { +
similar + } circumstances. This subsection does not { - repeal
or change - } { + affect + } any { - law - } { + statute,
regulation + } or rule of law { - which - } { + that + }
imposes liability upon a common carrier for damages not caused by
its negligence.
(2) Damages may be limited by a { - provision - } { + term
in the bill of lading or in a transportation agreement + } that
the carrier's liability { - shall - } { + may + } not exceed
a value stated in the { - document - } { + bill or
transportation agreement + } if the carrier's rates are dependent
upon value and the consignor { - by the carrier's tariff - } is
afforded an opportunity to declare a higher value { - or a
value as lawfully provided in the tariff, or where no tariff is
filed - } { + and + } the consignor is { - otherwise advised
of such - } { + advised of the + } opportunity { - ; but
no - } { + However, + } such { + a + } limitation is { +
not + } effective with respect to the carrier's liability for
conversion to its own use.
(3) Reasonable provisions as to the time and manner of
presenting claims and { - instituting - } { + commencing + }
actions based on the shipment may be included in a bill of lading
or { - tariff - } { + a transportation agreement + }.
SECTION 73. ORS 77.4010 is amended to read:
77.4010. The obligations imposed by this chapter on an issuer
apply to a document of title { - regardless of the fact
that - } { + even if + }:
(1) The document { - may - } { + does + } not comply with
the requirements of this chapter or of any other { - law - }
{ + statute, rule + } or regulation regarding its
{ - issue - } { + issuance + }, form or content; { - or - }
(2) The issuer { - may have - } violated laws regulating the
conduct of { - the - } { + its + } business { + ; + }
{ - of the issuer; or - }
(3) The goods covered by the document were owned by the bailee
{ - at the time - } { + when + } the document was issued; or
(4) The person issuing the document { - does - } { + is + }
not { - come within the definition of warehouseman if it - }
{ + a warehouse but the document + } purports to be a warehouse
receipt.
SECTION 74. ORS 77.4020 is amended to read:
77.4020. { - Neither - } A duplicate { - nor - } { +
or + } any other document of title purporting to cover goods
already represented by an outstanding document of the same issuer
{ - confers - } { + does not confer + } any right in the
goods, except as provided in the case of { + tangible + }
bills { + of lading + } in a set { + of parts + }, overissue of
documents for fungible goods { + , + } { - and - } substitutes
for lost, stolen or destroyed documents { + or substitute
documents + } { + issued pursuant to ORS 77.1050 + }.
{ - But - } The issuer is liable for damages caused by { +
its + } overissue or failure to identify a duplicate document
{ - as such - } by conspicuous notation { - on its face - } .
SECTION 75. ORS 77.4030 is amended to read:
77.4030. (1) { - The - } { + A + } bailee { - must - }
{ + shall + } deliver the goods to a person entitled under
{ - the - } { + a + } document { - who - } { + of title if
the person + } complies with subsections (2) and (3) of this
section unless and to the extent that the bailee establishes any
of the following:
(a) Delivery of the goods to a person whose receipt was
rightful as against the claimant { - . - } { + ; + }
(b) Damage to or delay, loss or destruction of the goods for
which the bailee is not liable { + ; + } { - , but the burden
of establishing negligence in such cases is on the person
entitled under the document. - }
(c) Previous sale or other disposition of the goods in lawful
enforcement of a lien or on { - warehouseman's - } { + a
warehouse's + } lawful termination of storage { - . - }
{ + ; + }
(d) The exercise by a seller of { - the - } { + its + }
right { - of the seller - } to stop delivery pursuant to
{ - the provisions of - } ORS 72.7050 { - . - } { + or by a
lessor of its right to stop delivery pursuant to ORS
72A.5260; + }
(e) A diversion, reconsignment or other disposition pursuant to
{ - the provisions of - } ORS 77.3030 { + ; + } { - or tariff
regulating such right. - }
(f) Release, satisfaction or any other { - fact affording
a - } personal defense against the claimant { - . - } { + ;
or + }
(g) Any other lawful excuse.
(2) A person claiming goods covered by a document of title
{ - must - } { + shall + } satisfy the bailee's lien
{ - where - } { + if + } the bailee so requests or
{ - where - } { + if + } the bailee is prohibited by law from
delivering the goods until the charges are paid.
(3) Unless { - the - } { + a + } person claiming { + the
goods + } is { - one - } { + a person + } against
{ - whom - } { + which + } the document { - confers no - }
{ + of title does not confer a + } right under ORS 77.5030 (1)
{ - , - } { + :
(a) + } The person { - must - } { + claiming under the
document shall + } surrender { - for cancellation or notation
of partial deliveries - } { + possession or control of + } any
outstanding negotiable document covering the goods { - , - }
{ + for cancellation or indication of partial deliveries;
+ }and
{ + (b) + } The bailee { - must - } { + shall + } cancel
the document or conspicuously { - note - } { + indicate in
the document + } the partial delivery
{ - thereon - } or { - be - } { + the bailee is + } liable
to any person to { - whom - } { + which + } the document is
duly negotiated.
{ - (4) 'Person entitled under the document' means holder in
the case of a negotiable document, or the person to whom delivery
is to be made by the terms of or pursuant to written instructions
under a nonnegotiable document. - }
SECTION 76. ORS 77.4040 is amended to read:
77.4040. A bailee { - who - } { + that + } in good faith
{ - including observance of reasonable commercial standards - }
has received goods and delivered or otherwise disposed of
{ - them - } { + the goods + } according to the terms of
{ - the - } { + a + } document of title or pursuant to this
chapter is not liable { - therefor. - } { + for the goods
even if:
(1) + } { - This rule applies even though - } The person
from { - whom - } { + which + } the bailee received the goods
{ - had no - } { + did not have + } authority to procure the
document or to dispose of the goods { + ; or + }
{ + (2) + } { - and even though - } The person to
{ - whom - } { + which + } the bailee delivered the goods
{ - had no - } { + did not have + } authority to receive
{ - them - } { + the goods + }.
SECTION 77. ORS 77.5010 is amended to read:
77.5010. (1) { + The following rules apply to + }a negotiable
{ + tangible + } document of title { + :
(a) If the document's original terms run + } { - running - }
to the order of a named person { + , the document + } is
negotiated by { + the named person's + } indorsement { - of
the named person - } and delivery. After { + the named
person's + } indorsement in blank or to bearer { + , + } any
person { - can - } { + may + } negotiate { - it - } { +
the document + } by delivery alone.
{ - (2)(a) A negotiable document of title is also negotiated
by delivery alone when by its original terms it runs to
bearer. - }
(b) { - When a document running - } { + If the document's
original terms run to bearer, it is negotiated by delivery
alone. + }
{ + (c) If the document's original terms run + } to the order
of a named person { + and the document + } is delivered to
the { + named + } person { + , + } the effect is the same as if
the document had been negotiated.
{ - (3) - } { + (d) + } Negotiation of { - a negotiable
document of title - } { + the document + } after it has been
indorsed to a { - specified - } { + named + } person requires
indorsement by the { - special indorsee as well as - } { +
named person and + } delivery.
{ - (4) - } { + (e) + } A { - negotiable - } document
{ - of title - } is { - ' - } duly negotiated { - '
when - } { + if + } it is negotiated in the manner stated in
this { - section - } { + subsection + } to a holder
{ - who - } { + that + } purchases it in good faith { + , + }
without notice of any defense against or claim to it on the part
of any person { + , + } and for value, unless it is established
that the negotiation is not in the regular course of business or
financing or involves receiving the document in settlement or
payment of a { - money - } { + monetary + } obligation.
{ + (2) The following rules apply to a negotiable electronic
document of title:
(a) If the document's original terms run to the order of a
named person or to bearer, the document is negotiated by delivery
of the document to another person. Indorsement by the named
person is not required to negotiate the document.
(b) If the document's original terms run to the order of a
named person and the named person has control of the document,
the effect is the same as if the document had been negotiated.
(c) A document is duly negotiated if it is negotiated in the
manner stated in this subsection to a holder that purchases the
document in good faith, without notice of any defense against or
claim to the document on the part of any person, and for value,
unless it is established that the negotiation is not in the
regular course of business or financing or involves taking
delivery of the document in settlement or payment of a monetary
obligation. + }
{ - (5) - } { + (3) + } Indorsement of a nonnegotiable
document { + of title + } neither makes it negotiable nor adds
to the transferee's rights.
{ - (6) - } { + (4) + } The naming in a negotiable
bill { + of lading + } of a person to be notified of the arrival
of the goods does not limit the negotiability of the bill
{ - nor - } { + or + } constitute notice to a purchaser
{ - thereof - } { + of the bill + } of any interest of
{ - such - } { + that + } person in the goods.
SECTION 78. ORS 77.5020 is amended to read:
77.5020. (1) Subject to ORS { + 77.2050 and + } 77.5030
{ - and to the provisions of ORS 77.2050 on fungible goods - } ,
a holder to { - whom - } { + which + } a negotiable document
of title has been duly negotiated acquires thereby:
(a) Title to the document;
(b) Title to the goods;
(c) All rights accruing under the law of agency or estoppel,
including rights to goods delivered to the bailee after the
document was issued; and
(d) The direct obligation of the issuer to hold or deliver the
goods according to the terms of the document free of any defense
or claim by the issuer except those arising under the terms of
the document or under this chapter { - . - } { + , but + } in
the case of a delivery order the bailee's obligation accrues only
upon { + the bailee's + } acceptance { + of the delivery
order + } and the obligation acquired by the holder is that the
issuer and any indorser will procure the acceptance of the
bailee.
(2) Subject to ORS 77.5030, title and rights { - so - }
acquired { + by due negotiation + } are not defeated by any
stoppage of the goods represented by the document { + of
title + } or by surrender of { - such - } { + the + } goods
by the bailee { - , - } and are not impaired even
{ - though - } { + if:
(a) + } The { + due + } negotiation or any prior { + due + }
negotiation constituted a breach of duty { + ; + } { - or - }
{ + (b) + } { - even though - } Any person has been
deprived of possession of { - the - } { + a negotiable
tangible + } document { + or control of a negotiable electronic
document + } by misrepresentation, fraud, accident, mistake,
duress, loss, theft or conversion { - , - } { + ; + } or
{ + (c) + } { - even though - } A previous sale or other
transfer of the goods or document has been made to a third
person.
SECTION 79. ORS 77.5030 is amended to read:
77.5030. (1) A document of title confers no right in goods
against a person { - who - } { + that + } before issuance of
the document had a legal interest or a perfected security
interest in { - them - } { + the goods + } and { - who
neither - } { + that did not + }:
(a) { - Delivered or entrusted them - } { + Deliver or
entrust the goods + } or any document of title covering
{ - them - } { + the goods + } to the bailor or the { +
bailor's + } nominee { - of the bailor - } with { + :
(A) + } Actual or apparent authority to ship, store or
sell { + ;
(B) + } { - or with - } Power to obtain delivery under ORS
77.4030 { + ; + } or
{ + (C) + } { - with - } Power of disposition under ORS
72.4030 { + , 72A.3040 (2), 72A.3050 (2), + } { - and - }
79.0320 or { + 79.0321 (3) or + } other statute or rule of law;
{ - nor - } { + or + }
(b) { - Acquiesced - } { + Acquiesce + } in the procurement
by the bailor or { - the - } { + its + } nominee { - of the
bailor - } of any document { - of title - } .
(2) Title to goods based upon an unaccepted delivery order is
subject to the rights of { - anyone - } { + any person + } to
{ - whom - } { + which + } a negotiable warehouse receipt or
bill of lading covering the goods has been duly negotiated.
{ - Such a - } { + That + } title may be defeated under ORS
77.5040 to the same extent as the rights of the issuer or a
transferee from the issuer.
(3) Title to goods based upon a bill of lading issued to a
freight forwarder is subject to the rights of { - anyone - }
{ + any person + } to { - whom - } { + which + } a bill
issued by the freight forwarder is duly negotiated { - ; but - }
{ + . However, + } delivery by the carrier in accordance with
ORS 77.4010 to 77.4040 pursuant to its own bill of lading
discharges the carrier's obligation to deliver.
SECTION 80. ORS 77.5040 is amended to read:
77.5040. (1) A transferee of a document { + of title + },
whether negotiable or nonnegotiable, to { - whom - } { +
which + } the document has been delivered but not duly
negotiated, acquires the title and rights
{ - which - } { + that + } the { + document's + } transferor
had or had actual authority to convey.
(2) In the case of a { + transfer of a + } nonnegotiable
document { + of title + }, until but not after the bailee
receives { - notification - } { + notice + } of the transfer,
the rights of the transferee may be defeated:
(a) By those creditors of the transferor { - who - } { +
which + } could treat the { - sale - } { + transfer + } as
void under ORS 72.4020 { + or 72A.3080 + };
{ - or - }
(b) By a buyer from the transferor in ordinary course of
business if the bailee has delivered the goods to the buyer or
received notification of the buyer's rights; { - or - }
{ + (c) By a lessee from the transferor in ordinary course of
business if the bailee has delivered the goods to the lessee or
received notification of the lessee's rights; or + }
{ - (c) - } { + (d) + } As against the bailee by good faith
dealings of the bailee with the transferor.
(3) A diversion or other change of shipping instructions by the
consignor in a nonnegotiable bill of lading which causes the
bailee not to deliver { + the goods + } to the consignee defeats
the consignee's title to the goods if { - they - } { + the
goods + } have been delivered to a buyer in ordinary course of
business { + or lessee in ordinary course of business + }
and { + , + } in any event { + , + } defeats the consignee's
rights against the bailee.
(4) Delivery { + of the goods + } pursuant to a nonnegotiable
document { + of title + } may be stopped by a seller under ORS
72.7050 { - , and - } { + or a lessor under ORS 72A.5260 + }
subject to the { - requirement - } { + requirements + } of due
notification { - there provided - } { + in those
sections + }. A bailee { - honoring - } { + that honors + }
the seller's { + or lessor's + } instructions is entitled to be
indemnified by the seller { + or lessor + } against any
resulting loss or expense.
SECTION 81. ORS 77.5050 is amended to read:
77.5050. The indorsement of a { + tangible + } document of
title issued by a bailee does not make the indorser liable for
any default by the bailee or by previous indorsers.
SECTION 82. ORS 77.5060 is amended to read:
77.5060. The transferee of a negotiable { + tangible + }
document of title has a specifically enforceable right to have
the { + document's + } transferor supply any necessary
indorsement { + , + } but the transfer becomes a negotiation only
as of the time the indorsement is supplied.
SECTION 83. ORS 77.5070 is amended to read:
77.5070. { - Where - } { + If + } a person negotiates or
{ - transfers - } { + delivers + } a document of title for
value { + , + } otherwise than as a mere intermediary under ORS
77.5080, { - then - } unless otherwise agreed { + , + } the
{ - person warrants to the immediate purchaser only - } { +
transferor, + } in addition to any warranty made in selling { +
or leasing + } the goods { + , warrants to the immediate
purchaser only that + }:
(1) { - That - } The document is genuine; { - and - }
(2) { - That - } The { - person has no - } { +
transferor does not have + } knowledge of any fact
{ - which - } { + that + } would impair { - its - } { +
the document's + } validity or worth; and
(3) { - That - } The negotiation or { - transfer - } { +
delivery + } is rightful and fully effective with respect to the
title to the document and the goods it represents.
SECTION 84. ORS 77.5080 is amended to read:
77.5080. A collecting bank or other intermediary known to be
entrusted with documents { + of title + } on behalf of another
or with collection of a draft or other claim against delivery of
documents warrants by { - such - } { + the + } delivery of
the documents only its own good faith and authority { - . This
rule applies even though the - } { + even if the collecting
bank or other + } intermediary has purchased or made advances
against the claim or draft to be collected.
SECTION 85. ORS 77.5090 is amended to read:
77.5090. { - The question - } Whether a document { + of
title + } is adequate to fulfill the obligations of a contract
for sale { + , a contract for lease + } or the conditions of
a { + letter of + } credit is
{ - governed - } { + determined + } by ORS { - chapter 72
on sales and ORS chapter 75 on letters of credit - } { +
chapter 72, 72A or 75 + }.
SECTION 86. ORS 77.6010 is amended to read:
77.6010. (1) If a document { - has been - } { + of title
is + } lost, stolen or destroyed, a court may order delivery of
the goods or issuance of a substitute document and the bailee may
without liability to any person comply with { - such - } { +
the + } order. If the document was negotiable { + , a court may
not order delivery of the goods or issuance of a substitute
document without the claimant's posting security unless it finds
that + } { - the claimant must post security approved by the
court to indemnify - } any person { - who - } { + that + }
may suffer loss as a result of nonsurrender { + of possession or
control + }of the document { + is adequately protected against
the loss + }. If the document was { - not negotiable, such
security may be required at the discretion of the court - } { +
nonnegotiable, the court may require security + }. The court may
also { - in its discretion - } order payment of the bailee's
reasonable costs and { - counsel - } { + attorney + }
fees { + in any action under this subsection + }.
(2) A bailee { - who - } { + that + } without { + a + }
court order delivers goods to a person claiming under a missing
negotiable document { + of title + } is liable to any person
injured thereby { - , and - } { + . + } If the delivery is not
in good faith { + , the bailee is + } { - becomes - } liable
for conversion. Delivery in good faith is not conversion
{ - if made in accordance with a filed classification or tariff
or, where no classification or tariff is filed, - } if the
claimant posts security with the bailee in an amount at least
double the value of the goods at the time of posting to indemnify
any person injured by the delivery
{ - who - } { + which + } files a notice of claim within one
year after the delivery.
SECTION 87. ORS 77.6020 is amended to read:
77.6020. { - Except where the - } { + Unless a + }
document { + of title + } was originally issued upon delivery of
the goods by a person { - who had no - } { + that did not
have + } power to dispose of them, { - no lien attaches - }
{ + a lien does not attach + } by virtue of any judicial process
to goods in the possession of a bailee for which a negotiable
document of title is outstanding unless { + possession or
control of + } the document
{ - be - } { + is + } first surrendered to the bailee or
{ - its - } { + the document's + } negotiation { + is + }
enjoined { - , and - } { + . + } The bailee { - shall - }
{ + may + } not be compelled to deliver the goods pursuant to
process until { + possession or control of + } the document is
surrendered to the bailee or { - impounded by - } { + to + }
the court. { - One who purchases - } { + A purchaser of + }
the document for value without notice of the process or
injunction takes free of the lien imposed by judicial process.
SECTION 88. ORS 77.6030 is amended to read:
77.6030. If more than one person claims title { + to + } or
possession of the goods, the bailee is excused from delivery
until the bailee has { - had - } a reasonable time to
ascertain the validity of the adverse claims or to
{ - bring - } { + commence + } an action { - to compel all
claimants to interplead and may compel such - } { + for + }
interpleader { - , - } { + . + } { + The bailee may assert an
interpleader + }either in defending an action for nondelivery of
the goods { - , - } or by original action { - , whichever is
appropriate - } .
SECTION 89. ORS 78.1020 is amended to read:
78.1020. (1) In this chapter:
(a) 'Adverse claim' means a claim in which a claimant who has a
property interest in a financial asset asserts that it is a
violation of the rights of the claimant for another person to
hold, transfer or deal with the financial asset.
(b) 'Bearer form,' as applied to a certificated security, means
a form in which the security is payable to the bearer of the
security certificate according to its terms but not by reason of
an indorsement.
(c) 'Broker' means a person defined as a broker or dealer under
the federal securities laws, but does not exclude a bank acting
in that capacity.
(d) 'Certificated security' means a security that is
represented by a certificate.
(e) 'Clearing corporation' means:
(A) A person that is registered as a clearing agency under the
federal securities laws;
(B) A federal reserve bank; or
(C) Any other person that provides clearance or settlement
services with respect to financial assets that would require it
to register as a clearing agency under the federal securities
laws but for an exclusion or exemption from the registration
requirement, if its activities as a clearing corporation,
including promulgation of rules, are subject to regulation by a
federal or state governmental authority.
(f) 'Communicate' means to:
(A) Send a signed writing; or
(B) Transmit information by any mechanism agreed upon by the
persons transmitting and receiving the information.
(g) 'Entitlement holder' means a person identified in the
records of a securities intermediary as the person having a
security entitlement against the securities intermediary. If a
person acquires a security entitlement by virtue of ORS 78.5010
(2)(b) or (c), that person is the entitlement holder.
(h) 'Entitlement order' means a notification communicated to a
securities intermediary directing transfer or redemption of a
financial asset to which the entitlement holder has a security
entitlement.
(i)(A) 'Financial asset,' except as otherwise provided in ORS
78.1030, means:
(i) A security;
(ii) An obligation of a person or a share, participation, or
other interest in a person or in property or an enterprise of a
person, that is, or is of a type, dealt in or traded on financial
markets, or that is recognized in any area in which it is issued
or dealt in as a medium for investment; or
(iii) Any property that is held by a securities intermediary
for another person in a securities account if the securities
intermediary has expressly agreed with the other person that the
property is to be treated as a financial asset under this
chapter.
(B) As context requires, 'financial asset' means either the
interest itself or the means by which a person's claim to it is
evidenced, including a certificated or uncertificated security, a
security certificate or a security entitlement.
{ - (j) 'Good faith,' for purposes of the obligation of good
faith in the performance or enforcement of contracts or duties
within this chapter, means honesty in fact and the observance of
reasonable commercial standards of fair dealing. - }
{ - (k) - } { + (j) + } 'Indorsement' means a signature
that alone or accompanied by other words is made on a security
certificate in registered form or on a separate document for the
purpose of assigning, transferring or redeeming the security or
granting the power to assign, transfer or redeem it.
{ - (L) - } { + (k) + } 'Instruction' means a notification
communicated to the issuer of an uncertificated security that
directs that the transfer of the security be registered or that
the security be redeemed.
{ - (m) - } { + (L) + } 'Registered form,' as applied to a
certificated security, means a form in which:
(A) The security certificate specifies a person entitled to the
security; and
(B) A transfer of the security may be registered upon books
maintained for that purpose by or on behalf of the issuer, or the
security certificate so states.
{ - (n) - } { + (m) + } 'Securities intermediary' means:
(A) A clearing corporation; or
(B) A person, including a bank or broker, that in the ordinary
course of business maintains securities accounts for others and
is acting in that capacity.
{ - (o) - } { + (n) + } 'Security,' except as otherwise
provided in ORS 78.1030, means an obligation of an issuer or a
share, participation or other interest in an issuer or in
property or an enterprise of an issuer:
(A) That is represented by a security certificate in bearer or
registered form, or the transfer of which may be registered upon
books maintained for that purpose by or on behalf of the issuer;
(B) That is one of a class or series or by its terms is
divisible into a class or series of shares, participations,
interests or obligations; and
(C)(i) That is, or is of a type, dealt in or traded on
securities exchanges or securities markets; or
(ii) That is a medium for investment and by its terms expressly
provides that it is a security governed by this chapter.
{ - (p) - } { + (o) + } 'Security certificate' means a
certificate representing a security.
{ - (q) - } { + (p) + } 'Security entitlement' means the
rights and property interest of an entitlement holder with
respect to a financial asset specified in ORS 78.5010 to 78.5110.
{ - (r) - } { + (q) + } 'Uncertificated security' means a
security that is not represented by a certificate.
(2) Other definitions applying to this chapter and the sections
in which they appear are:
(a) 'Appropriate person' as defined in ORS 78.1070.
(b) 'Control' as defined in ORS 78.1060.
(c) 'Delivery' as defined in ORS 78.3010.
(d) 'Investment company security' as defined in ORS 78.1030.
(e) 'Issuer' as defined in ORS 78.2010.
(f) 'Overissue' as defined in ORS 78.2100.
(g) 'Protected purchaser' as defined in ORS 78.3030.
(h) 'Securities account' as defined in ORS 78.5010.
(3) In addition, ORS chapter 71 contains general definitions
and principles of construction and interpretation applicable
throughout this chapter.
(4) The characterization of a person, business or transaction
for purposes of this chapter does not determine the
characterization of the person, business or transaction for
purposes of any other law, regulation or rule.
SECTION 90. ORS 78.1030 is amended to read:
78.1030. (1) A share or similar equity interest issued by a
corporation, business trust, joint stock company or similar
entity is a security.
(2) An 'investment company security' is a security. '
Investment company security' means a share or similar equity
interest issued by an entity that is registered as an investment
company under the federal investment company laws, an interest in
a unit investment trust that is so registered or a face-amount
certificate issued by a face-amount certificate company that is
so registered. 'Investment company security' does not include an
insurance policy, endowment policy or annuity contract issued by
an insurance company.
(3) An interest in a partnership or limited liability company
is not a security unless it is dealt in or traded on securities
exchanges or in securities markets, its terms expressly provide
that it is a security governed by this chapter or it is an
investment company security. However, an interest in a
partnership or limited liability company is a financial asset if
it is held in a securities account.
(4) A writing that is a security certificate is governed by
this chapter and not by ORS chapter 73, even though it also meets
the requirements of that chapter. However, a negotiable
instrument governed by ORS chapter 73 is a financial asset if it
is held in a securities account.
(5) An option or similar obligation issued by a clearing
corporation to its participants is not a security, but is a
financial asset.
(6) A commodity contract, as defined in ORS 79.0102, is not a
security or a financial asset.
{ + (7) A document of title is not a financial asset unless
ORS 78.1020 (1)(i)(iii) applies. + }
SECTION 91. ORS 79.0102 is amended to read:
79.0102. (1) As used in this chapter:
(a) 'Accession' means goods that are physically united with
other goods in such a manner that the identity of the original
goods is not lost.
(b) 'Account,' except as used in 'account for { - , - } '
{ + :
(A) + } Means a right to payment of a monetary obligation,
whether or not earned by performance { - , - } { + : + }
(i) For property that has been or is to be sold, leased,
licensed, assigned, or otherwise disposed of { - , - }
{ + ; + }
(ii) For services rendered or to be rendered { - , - }
{ + ; + }
(iii) For a policy of insurance issued or to be issued
{ - , - } { + ; + }
(iv) For a secondary obligation incurred or to be incurred
{ - , - } { + ; + }
(v) For energy provided or to be provided { - , - } { + ; + }
(vi) For the use or hire of a vessel under a charter or other
contract { - , - } { + ; + }
(vii) Arising out of the use of a credit or charge card or
information contained on or for use with the card { - , - }
{ + ; + } or
(viii) As winnings in a lottery or other game of chance
operated or sponsored by a state, governmental unit of a state,
or person licensed or authorized to operate the game by a state
or governmental unit of a state. The term includes
health-care-insurance receivables.
{ + (B) + } { - The term - } Does not include { + : + }
(i) Rights to payment evidenced by chattel paper or an
instrument { - , - } { + ; + }
(ii) Commercial tort claims { - , - } { + ; + }
(iii) Deposit accounts { - , - } { + ; + }
(iv) Investment property { - , - } { + ; + }
(v) Letter-of-credit rights or letters of credit { - , - }
{ + ; + } or
(vi) Rights to payment for money or funds advanced or sold,
other than rights arising out of the use of a credit or charge
card or information contained on or for use with the card.
(c) { + (A) + } 'Account debtor' means a person obligated on an
account, chattel paper or general intangible.
{ + (B) + } The term does not include persons obligated to
pay a negotiable instrument, even if the instrument constitutes
part of chattel paper.
(d) 'Accounting,' except as used in 'accounting for, ' means a
record:
(A) Authenticated by a secured party;
(B) Indicating the aggregate unpaid secured obligations as of a
date not more than 35 days earlier or 35 days later than the date
of the record; and
(C) Identifying the components of the obligations in reasonable
detail.
(e) 'Agricultural lien' means an interest, other than a
security interest or a lien created under ORS 87.226, 87.228,
87.700 to 87.736 or 87.750 to 87.777, in farm products:
(A) Which secures payment or performance of an obligation for:
(i) Goods or services furnished in connection with a debtor's
farming operation; or
(ii) Rent on real property leased by a debtor in connection
with its farming operation;
(B) Which is created by statute in favor of a person that:
(i) In the ordinary course of its business furnished goods or
services to a debtor in connection with a debtor's farming
operation; or
(ii) Leased real property to a debtor in connection with the
debtor's farming operation; and
(C) Whose effectiveness does not depend on the person's
possession of the personal property.
(f) 'As-extracted collateral' means:
(A) Oil, gas or other minerals that are subject to a security
interest that:
(i) Is created by a debtor having an interest in the minerals
before extraction; and
(ii) Attaches to the minerals as extracted; or
(B) Accounts arising out of the sale at the wellhead or
minehead of oil, gas or other minerals in which the debtor had an
interest before extraction.
(g) 'Authenticate' means:
(A) To sign; or
(B) To execute or otherwise adopt a symbol, or encrypt or
similarly process a record in whole or in part, with the present
intent of the authenticating person to identify the person and
adopt or accept a record.
(h) 'Bank' means an organization that is engaged in the
business of banking. The term includes savings banks, savings and
loan associations, credit unions and trust companies.
(i) 'Cash proceeds' means proceeds that are money, checks,
deposit accounts or the like.
(j) 'Certificate of title' means a certificate of title with
respect to which a statute provides for the security interest in
question to be indicated on the certificate as a condition or
result of the security interest's obtaining priority over the
rights of a lien creditor with respect to the collateral.
(k) { + (A) + } 'Chattel paper' means a record or records that
evidence both a monetary obligation and a security interest in
specific goods, a security interest in specific goods and
software used in the goods, a security interest in specific goods
and license of software used in the goods, a lease of specific
goods, or a lease of specific goods and license of software used
in the goods. In this paragraph, 'monetary obligation' means a
monetary obligation secured by the goods or owed under a lease of
the goods and includes a monetary obligation with respect to
software used in the goods.
{ + (B) + } The term does not include { + : + }
(i) Charters or other contracts involving the use or hire of a
vessel { + ; + } or
(ii) Records that evidence a right to payment arising out of
the use of a credit or charge card or information contained on or
for use with the card. If a transaction is evidenced by records
that include an instrument or series of instruments, the group of
records taken together constitutes chattel paper.
(L) 'Collateral' means the property subject to a security
interest or agricultural lien. The term includes:
(A) Proceeds to which a security interest attaches;
(B) Accounts, chattel paper, payment intangibles and promissory
notes that have been sold; and
(C) Goods that are the subject of a consignment.
(m) 'Commercial tort claim' means a claim arising in tort with
respect to which:
(A) The claimant is an organization; or
(B) The claimant is an individual and the claim:
(i) Arose in the course of the claimant's business or
profession; and
(ii) Does not include damages arising out of personal injury to
or the death of an individual.
(n) 'Commodity account' means an account maintained by a
commodity intermediary in which a commodity contract is carried
for a commodity customer.
(o) 'Commodity contract' means a commodity futures contract, an
option on a commodity futures contract, a commodity option or
another contract if the contract or option is:
(A) Traded on or subject to the rules of a board of trade that
has been designated as a contract market for such a contract
pursuant to federal commodities laws; or
(B) Traded on a foreign commodity board of trade, exchange, or
market, and is carried on the books of a commodity intermediary
for a commodity customer.
(p) 'Commodity customer' means a person for which a commodity
intermediary carries a commodity contract on its books.
(q) 'Commodity intermediary' means a person that:
(A) Is registered as a futures commission merchant under
federal commodities law; or
(B) In the ordinary course of its business provides clearance
or settlement services for a board of trade that has been
designated as a contract market pursuant to federal commodities
law.
(r) 'Communicate' means:
(A) To send a written or other tangible record;
(B) To transmit a record by any means agreed upon by the
persons sending and receiving the record; or
(C) In the case of transmission of a record to or by a filing
office, to transmit a record by any means prescribed by
filing-office rule.
(s) 'Consignee' means a merchant to which goods are delivered
in a consignment.
(t) 'Consignment' means a transaction, regardless of its form,
in which a person delivers goods to a merchant for the purpose of
sale and:
(A) The merchant:
(i) Deals in goods of that kind under a name other than the
name of the person making delivery;
(ii) Is not an auctioneer; and
(iii) Is not generally known by its creditors to be
substantially engaged in selling the goods of others;
(B) With respect to each delivery, the aggregate value of the
goods is $1,000 or more at the time of delivery;
(C) The goods are not consumer goods immediately before
delivery; and
(D) The transaction does not create a security interest that
secures an obligation.
(u) 'Consignor' means a person that delivers goods to a
consignee in a consignment.
(v) 'Consumer debtor' means a debtor in a consumer transaction.
(w) 'Consumer goods' means goods that are used or bought for
use primarily for personal, family or household purposes.
(x) 'Consumer-goods transaction' means a consumer transaction
in which:
(A) An individual incurs an obligation primarily for personal,
family or household purposes; and
(B) A security interest in consumer goods secures the
obligation.
(y) 'Consumer obligor' means an obligor who is an individual
and who incurred the obligation as part of a transaction entered
into primarily for personal, family or household purposes.
(z) { + (A) + } 'Consumer transaction' means a transaction in
which { + :
(i) An individual incurs an obligation primarily for personal,
family or household purposes + } { - , - } { + ; + }
(ii) A security interest secures the obligation { - , - }
{ + ; + } and
(iii) The collateral is held or acquired primarily for
personal, family or household purposes.
{ + (B) + } The term includes consumer-goods transactions.
(aa) 'Continuation statement' means an amendment of a financing
statement which:
(A) Identifies, by its file number, the initial financing
statement to which it relates; and
(B) Indicates that it is a continuation statement for, or that
it is filed to continue the effectiveness of, the identified
financing statement.
(bb) 'Debtor' means:
(A) A person having an interest, other than a security interest
or other lien, in the collateral, whether or not the person is an
obligor;
(B) A seller of accounts, chattel paper, payment intangibles or
promissory notes; or
(C) A consignee.
(cc) { + (A) + } 'Deposit account' means a demand, time,
savings, passbook or similar account maintained with a bank.
{ + (B) + } The term does not include investment property or
accounts evidenced by an instrument.
(dd) 'Document' means a document of title or a receipt of the
type described in ORS 77.2010 (2).
(ee) 'Electronic chattel paper' means chattel paper evidenced
by a record or records consisting of information stored in an
electronic medium.
(ff) 'Encumbrance' means a right, other than an ownership
interest, in real property. The term includes mortgages and other
liens on real property.
(gg) 'Equipment' means goods other than inventory, farm
products or consumer goods.
(hh) 'Farm products' means goods, other than standing timber,
with respect to which the debtor is engaged in a farming
operation and which are:
(A) Crops grown, growing, or to be grown, including:
(i) Crops produced on trees, vines and bushes; and
(ii) Aquatic goods produced in aquacultural operations;
(B) Livestock, born or unborn, including aquatic goods produced
in aquacultural operations;
(C) Supplies used or produced in a farming operation; or
(D) Products of crops or livestock in their unmanufactured
states.
(ii) 'Farming operation' means raising, cultivating,
propagating, fattening, grazing or any other farming, livestock
or aquacultural operation.
(jj) 'File number' means the number assigned to an initial
financing statement pursuant to ORS 79.0519 (1).
(kk) 'Filing office' means an office designated in ORS 79.0501
as the place to file a financing statement.
(LL) 'Filing-office rule' means a rule adopted pursuant to ORS
79.0526.
(mm) 'Financing statement' means a record or records composed
of an initial financing statement and any filed record relating
to the initial financing statement.
(nn) 'Fixture filing' means the filing of a financing statement
covering goods that are or are to become fixtures and satisfying
ORS 79.0502 (1) and (2). The term includes the filing of a
financing statement covering goods of a transmitting utility
which are or are to become fixtures.
(oo) { + (A) + } 'Fixtures' means goods that have become so
related to particular real property that an interest in them
arises under real property law.
{ + (B) + } The term does not include portable irrigation
equipment including movable pipe, pumps, electrical pump panels,
pump columns, electrical wire, wheel lines, center pivots and
handlines.
{ + (C) + } The term includes domestic pumps, domestic pump
wire, domestic pump panels, domestic pump columns { - , - } and
buried irrigation equipment including buried pipe, buried
electrical wire and all buried well casings.
(pp) 'General intangible' means any personal property,
including things in action, other than accounts, chattel paper,
commercial tort claims, deposit accounts, documents, goods,
instruments, investment property, letter-of-credit rights,
letters of credit, money and oil, gas or other minerals before
extraction. The term includes payment intangibles and software.
{ - (qq) 'Good faith' means honesty in fact and the
observance of reasonable commercial standards of fair
dealing. - }
{ - (rr) - } { + (qq)(A) + } 'Goods' means all things that
are movable when a security interest attaches.
{ + (B) + } The term includes { + : + }
(i) Fixtures { - , - } { + ; + }
(ii) Standing timber that is to be cut and removed under a
conveyance or contract for sale { - , - } { + ; + }
(iii) The unborn young of animals { - , - } { + ; + }
(iv) Crops grown, growing or to be grown, even if the crops are
produced on trees, vines or bushes { - , - } { + ; + } and
(v) Manufactured structures.
{ + (C) + } The term also includes a computer program
embedded in goods and any supporting information provided in
connection with a transaction relating to the program
if { + : + }
(i) The program is associated with the goods in such a manner
that it customarily is considered part of the goods { - , - }
{ + ; + } or
(ii) By becoming the owner of the goods, a person acquires a
right to use the program in connection with the goods.
{ + (D) + } The term does not include a computer program
embedded in goods that consist solely of the medium in which the
program is embedded. The term also does not include accounts,
chattel paper, commercial tort claims, deposit accounts,
documents, general intangibles, instruments, investment property,
letter-of-credit rights, letters of credit, money or oil, gas or
other minerals before extraction.
{ - (ss) - } { + (rr) + } 'Governmental unit' means a
subdivision, agency, department, county, parish, municipality or
other unit of the government of the United States, a state or a
foreign country. The term includes an organization having a
separate corporate existence if the organization is eligible to
issue debt on which interest is exempt from income taxation under
the laws of the United States.
{ - (tt) - } { + (ss) + } 'Health-care-insurance
receivable' means an interest in or claim under a policy of
insurance which is a right to payment of a monetary obligation
for health-care goods or services provided.
{ - (uu) - } { + (tt)(A) + } 'Instrument' means a
negotiable instrument or any other writing that evidences a right
to the payment of a monetary obligation, is not itself a security
agreement or lease, and is of a type that in ordinary course of
business is transferred by delivery with any necessary
indorsement or assignment.
{ + (B) + } The term does not include { + : + }
(i) Investment property { - , - } { + ; + }
(ii) Letters of credit { + ; + } or
(iii) Writings that evidence a right to payment arising out of
the use of a credit or charge card or information contained on or
for use with the card.
{ - (vv) - } { + (uu) + } 'Inventory' means goods, other
than farm products, which:
(A) Are leased by a person as lessor;
(B) Are held by a person for sale or lease or to be furnished
under a contract of service;
(C) Are furnished by a person under a contract of service; or
(D) Consist of raw materials, work in process, or materials
used or consumed in a business.
{ - (ww) - } { + (vv) + } 'Investment property' means a
security, whether certificated or uncertificated, security
entitlement, securities account, commodity contract or commodity
account.
{ - (xx) - } { + (ww) + } 'Jurisdiction of organization,'
with respect to a registered organization, means the jurisdiction
under whose law the organization is organized.
{ - (yy) - } { + (xx)(A) + } 'Letter-of-credit right' means
a right to payment or performance under a letter of credit,
whether or not the beneficiary has demanded or is at the time
entitled to demand payment or performance.
{ + (B) + } The term does not include the right of a
beneficiary to demand payment or performance under a letter of
credit.
{ - (zz) - } { + (yy) + } 'Lien creditor' means:
(A) A creditor that has acquired a lien on the property
involved by attachment, levy or the like;
(B) An assignee for benefit of creditors from the time of
assignment;
(C) A trustee in bankruptcy from the date of the filing of the
petition; or
(D) A receiver in equity from the time of appointment.
{ - (aaa) - } { + (zz) + } 'Manufactured structure' has the
meaning given that term in ORS 446.561.
{ - (bbb) - } { + (aaa) + } 'Manufactured-structure
transaction' means a secured transaction:
(A) That creates a purchase-money security interest in a
manufactured structure, other than a manufactured structure held
as inventory; or
(B) In which a manufactured structure, other than a
manufactured structure held as inventory, is the primary
collateral.
{ - (ccc) - } { + (bbb) + } 'Mortgage' means a consensual
interest in real property, including fixtures, which secures
payment or performance of an obligation.
{ - (ddd) - } { + (ccc) + } 'New debtor' means a person
that becomes bound as debtor under ORS 79.0203 (4) by a security
agreement previously entered into by another person.
{ - (eee) - } { + (ddd)(A) + } 'New value' means { + : + }
(i) Money { - , - } { + ; + }
(ii) Money's worth in property, services or new credit
{ - , - } { + ; + } or
(iii) Release by a transferee of an interest in property
previously transferred to the transferee.
{ + (B) + } The term does not include an obligation
substituted for another obligation.
{ - (fff) - } { + (eee) + } 'Noncash proceeds' means
proceeds other than cash proceeds.
{ - (ggg) - } { + (fff)(A) + } 'Obligor' means a person
that, with respect to an obligation secured by a security
interest in or an agricultural lien on the collateral { - , - }
{ + : + }
(i) Owes payment or other performance of the obligation
{ - , - } { + ; + }
(ii) Has provided property other than the collateral to secure
payment or other performance of the obligation { - , - }
{ + ; + } or
(iii) Is otherwise accountable in whole or in part for payment
or other performance of the obligation.
{ + (B) + } The term does not include issuers or nominated
persons under a letter of credit.
{ - (hhh) - } { + (ggg) + } 'Original debtor,' except as
used in ORS 79.0310 (3), means a person that, as debtor, entered
into a security agreement to which a new debtor has become bound
under ORS 79.0203 (4).
{ - (iii) - } { + (hhh) + } 'Payment intangible' means a
general intangible under which the account debtor's principal
obligation is a monetary obligation.
{ - (jjj) - } { + (iii) + } 'Person related to,' with
respect to an individual, means:
(A) The spouse of the individual;
(B) A brother, brother-in-law, sister or sister-in-law of the
individual;
(C) An ancestor or lineal descendant of the individual or the
individual's spouse; or
(D) Any other relative, by blood or marriage, of the individual
or the individual's spouse who shares the same home with the
individual.
{ - (kkk) - } { + (jjj) + } 'Person related to,' with
respect to an organization, means:
(A) A person directly or indirectly controlling, controlled by,
or under common control with the organization;
(B) An officer or director of, or a person performing similar
functions with respect to, the organization;
(C) An officer or director of, or a person performing similar
functions with respect to, a person described in subparagraph (A)
of this paragraph;
(D) The spouse of an individual described in subparagraph (A),
(B) or (C) of this paragraph; or
(E) An individual who is related by blood or marriage to an
individual described in subparagraph (A), (B), (C) or (D) of this
paragraph and shares the same home with the individual.
{ - (LLL) - } { + (kkk) + } 'Proceeds,' except as used in
ORS 79.0609 (2), means the following property:
(A) Whatever is acquired upon the sale, lease, license,
exchange or other disposition of collateral;
(B) Whatever is collected on, or distributed on account of,
collateral;
(C) Rights arising out of collateral;
(D) To the extent of the value of collateral, claims arising
out of the loss, nonconformity or interference with the use of,
defects or infringement of rights in, or damage to, the
collateral; or
(E) To the extent of the value of collateral and to the extent
payable to the debtor or the secured party, insurance payable by
reason of the loss or nonconformity of, defects or infringement
of rights in, or damage to, the collateral.
{ - (mmm) - } { + (LLL) + } 'Promissory note' means an
instrument that evidences a promise to pay a monetary obligation,
does not evidence an order to pay, and does not contain an
acknowledgment by a bank that the bank has received for deposit a
sum of money or funds.
{ - (nnn) - } { + (mmm) + } 'Proposal' means a record
authenticated by a secured party which includes the terms on
which the secured party is willing to accept collateral in full
or partial satisfaction of the obligation it secures pursuant to
ORS 79.0620, 79.0621 and 79.0622.
{ - (ooo) - } { + (nnn) + } 'Public-finance transaction'
means a secured transaction in connection with which:
(A) Debt securities are issued;
(B) All or a portion of the securities issued have an initial
stated maturity of at least 20 years; and
(C) The debtor, obligor, secured party, account debtor or other
person obligated on collateral, assignor or assignee of a secured
obligation, or assignor or assignee of a security interest is a
state or a governmental unit of a state.
{ - (ppp) - } { + (ooo) + } 'Pursuant to commitment,' with
respect to an advance made or other value given by a secured
party, means pursuant to the secured party's obligation, whether
or not a subsequent event of default or other event not within
the secured party's control has relieved or may relieve the
secured party from its obligation.
{ - (qqq) - } { + (ppp) + } 'Record,' except as used in
'for record, ' ' of record,' 'record or legal title' and 'record
owner, ' means information that is inscribed on a tangible medium
or which is stored in an electronic or other medium and is
retrievable in perceivable form.
{ - (rrr) - } { + (qqq) + } 'Registered organization' means
an organization organized solely under the law of a single state
or the United States and as to which the state or the United
States is required by statute or regulation to maintain a public
record showing the organization to have been organized.
{ - (sss) - } { + (rrr) + } 'Secondary obligor' means an
obligor to the extent that:
(A) The obligor's obligation is secondary; or
(B) The obligor has a right of recourse with respect to an
obligation secured by collateral against the debtor, another
obligor, or property of either.
{ - (ttt) - } { + (sss) + } 'Secured party' means:
(A) A person in whose favor a security interest is created or
provided for under a security agreement, whether or not any
obligation to be secured is outstanding;
(B) A person that holds an agricultural lien;
(C) A consignor;
(D) A person to which accounts, chattel paper, payment
intangibles or promissory notes have been sold;
(E) A trustee, indenture trustee, agent, collateral agent or
other representative in whose favor a security interest or
agricultural lien is created or provided for; or
(F) A person that holds a security interest arising under ORS
72.4010, 72.5050, 72.7110 (3), 72A.5080 (5), 74.2100 or 75.1180.
{ - (uuu) - } { + (ttt) + } 'Security agreement' means an
agreement that creates or provides for a security interest.
{ - (vvv) - } { + (uuu) + } 'Send,' in connection with a
record or notification, means:
(A) To deposit in the mail, deliver for transmission, or
transmit by any other usual means of communication, with postage
or cost of transmission provided for, addressed to any address
reasonable under the circumstances; or
(B) To cause the record or notification to be received within
the time that it would have been received if properly sent under
subparagraph (A) of this paragraph.
{ - (www) - } { + (vvv)(A) + } 'Software' means a computer
program and any supporting information provided in connection
with a transaction relating to the program.
{ + (B) + } The term does not include a computer program that
is included in the definition of goods.
{ - (xxx) - } { + (www) + } 'State' means a state of the
United States, the District of Columbia, Puerto Rico, the United
States Virgin Islands or any territory or insular possession
subject to the jurisdiction of the United States.
{ - (yyy) - } { + (xxx) + } 'Supporting obligation' means a
letter-of-credit right or secondary obligation that supports the
payment or performance of an account, chattel paper, a document,
a general intangible, an instrument or investment property.
{ - (zzz) - } { + (yyy) + } 'Tangible chattel paper' means
chattel paper evidenced by a record or records consisting of
information that is inscribed on a tangible medium.
{ - (aaaa) - } { + (zzz) + } 'Termination statement' means
an amendment of a financing statement which:
(A) Identifies, by its file number, the initial financing
statement to which it relates; and
(B) Indicates either that it is a termination statement or that
the identified financing statement is no longer effective.
{ - (bbbb) - } { + (aaaa) + } 'Transmitting utility' means
an organization primarily engaged in the business of:
(A) Operating a railroad, subway, street railway or trolley
bus;
(B) Transmitting communications electrically,
electromagnetically or by light;
(C) Transmitting goods by pipeline or sewer; or
(D) Transmitting or producing and transmitting electricity,
steam, gas or water.
(2) { + ' Control' as provided in section 54 of this 2009 Act
and + }the following definitions in other sections apply to this
chapter:
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
'
Applicant'
ORS 75.1020
'
Beneficiary'
ORS 75.1020
'
Broker'
ORS 78.1020
'
Certificated security'
ORS 78.1020
'
Check'
ORS 73.0104
'
Clearing corporation'
ORS 78.1020
'
Contract for sale'
ORS 72.1060
'
Customer'
ORS 74.1040
'
Entitlement holder'
ORS 78.1020
'
Financial asset'
ORS 78.1020
'
Holder in due course'
ORS 73.0302
'
Issuer'
(with respect
to a letter of credit or
letter-of-credit rigORS 75.1020
'
Issuer'
(with respect
to a security) ORS 78.2010
{ +
'
Issuer'
(with respect + }
{ +
toORSc77.1020o+ }itle)
'
Lease'
ORS 72A.1030
'
Lease agreement'
ORS 72A.1030
'
Lease contract'
ORS 72A.1030
'
Leasehold interest'
ORS 72A.1030
'
Lessee'
ORS 72A.1030
'
Lessee in ordinary course
of business'
ORS 72A.1030
'
Lessor'
ORS 72A.1030
'
Lessor's residual
interest'
ORS 72A.1030
'
Letter of credit'
ORS 75.1020
'
Merchant'
ORS 72.1040
'
Negotiable instrument'
ORS 73.0104
'
Nominated person'
ORS 75.1020
'
Note'
ORS 73.0104
'
Proceeds of a letter
of credit'
ORS 75.1140
'
Prove'
ORS 73.0103
'
Sale'
ORS 72.1060
'
Securities account'
ORS 78.5010
'
Securities intermediary'
ORS 78.1020
'
Security'
ORS 78.1020
'
Security certificate'
ORS 78.1020
'
Security entitlement'
ORS 78.1020
'
Uncertificated security'
ORS 78.1020
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
(3) ORS chapter 71 contains general definitions and principles
of construction and interpretation applicable throughout this
chapter.
SECTION 92. ORS 79.0203 is amended to read:
79.0203. (1) A security interest attaches to collateral when it
becomes enforceable against the debtor with respect to the
collateral, unless an agreement expressly postpones the time of
attachment.
(2) Except as otherwise provided in subsections (3) to (9) of
this section, a security interest is enforceable against the
debtor and third parties with respect to the collateral only if:
(a) Value has been given;
(b) The debtor has rights in the collateral or the power to
transfer rights in the collateral to a secured party; and
(c) One of the following conditions is met:
(A) The debtor has authenticated a security agreement that
provides a description of the collateral and, if the security
interest covers timber to be cut, a description of the land
concerned;
(B) The collateral is not a certificated security and is in the
possession of the secured party under ORS 79.0313 pursuant to the
debtor's security agreement;
(C) The collateral is a certificated security in registered
form and the security certificate has been delivered to the
secured party under ORS 78.3010 pursuant to the debtor's security
agreement; or
(D) The collateral is deposit accounts, electronic chattel
paper, investment property { + , + } { - or - }
letter-of-credit rights { - , - } { + or electronic
documents, + } and the secured party has control under { +
section 54 of this 2009 Act or + } ORS 79.0104, 79.0105, 79.0106
or 79.0107 pursuant to the debtor's security agreement.
(3) Subsection (2) of this section is subject to ORS 74.2100 on
the security interest of a collecting bank, ORS 75.1180 on the
security interest of a letter-of-credit issuer or nominated
person, ORS 79.0110 on a security interest arising under ORS
chapter 72 or 72A and ORS 79.0206 on security interests in
investment property.
(4) A person becomes bound as debtor by a security agreement
entered into by another person if, by operation of law other than
this chapter or by contract:
(a) The security agreement becomes effective to create a
security interest in the person's property; or
(b) The person becomes generally obligated for the obligations
of the other person, including the obligation secured under the
security agreement, and acquires or succeeds to all or
substantially all of the assets of the other person.
(5) If a new debtor becomes bound as debtor by a security
agreement entered into by another person:
(a) The agreement satisfies subsection (2)(c) of this section
with respect to existing or after-acquired property of the new
debtor to the extent the property is described in the agreement;
and
(b) Another agreement is not necessary to make a security
interest in the property enforceable.
(6) The attachment of a security interest in collateral gives
the secured party the rights to proceeds provided by ORS 79.0315
and is also attachment of a security interest in a supporting
obligation for the collateral.
(7) The attachment of a security interest in a right to payment
or performance secured by a security interest or other lien on
personal or real property is also attachment of a security
interest in the security interest, mortgage or other lien.
(8) The attachment of a security interest in a securities
account is also attachment of a security interest in the security
entitlements carried in the securities account.
(9) The attachment of a security interest in a commodity
account is also attachment of a security interest in the
commodity contracts carried in the commodity account.
SECTION 93. ORS 79.0207 is amended to read:
79.0207. (1) Except as otherwise provided in subsection (4) of
this section, a secured party shall use reasonable care in the
custody and preservation of collateral in the secured party's
possession. In the case of chattel paper or an instrument,
reasonable care includes taking necessary steps to preserve
rights against prior parties unless otherwise agreed.
(2) Except as otherwise provided in subsection (4) of this
section, if a secured party has possession of collateral:
(a) Reasonable expenses, including the cost of insurance and
payment of taxes or other charges, incurred in the custody,
preservation, use or operation of the collateral are chargeable
to the debtor and are secured by the collateral;
(b) The risk of accidental loss or damage is on the debtor to
the extent of a deficiency in any effective insurance coverage;
(c) The secured party shall keep the collateral identifiable,
but fungible collateral may be commingled; and
(d) The secured party may use or operate the collateral:
(A) For the purpose of preserving the collateral or its value;
(B) As permitted by an order of a court having competent
jurisdiction; or
(C) Except in the case of consumer goods, in the manner and to
the extent agreed by the debtor.
(3) Except as otherwise provided in subsection (4) of this
section, a secured party having possession of collateral or
control of collateral under ORS 79.0104, 79.0105, 79.0106 or
79.0107 { + or section 54 of this 2009 Act + }:
(a) May hold as additional security any proceeds, except money
or funds, received from the collateral;
(b) Shall apply money or funds received from the collateral to
reduce the secured obligation, unless remitted to the debtor; and
(c) May create a security interest in the collateral.
(4) If the secured party is a buyer of accounts, chattel paper,
payment intangibles or promissory notes or a consignor:
(a) Subsection (1) of this section does not apply unless the
secured party is entitled under an agreement:
(A) To charge back uncollected collateral; or
(B) Otherwise to full or limited recourse against the debtor or
a secondary obligor based on the nonpayment or other default of
an account debtor or other obligor on the collateral; and
(b) Subsections (2) and (3) of this section do not apply.
SECTION 94. ORS 79.0208 is amended to read:
79.0208. (1) This section applies to cases in which there is no
outstanding secured obligation and the secured party is not
committed to make advances, incur obligations or otherwise give
value.
(2) Within 10 days after receiving an authenticated demand by
the debtor:
(a) A secured party having control of a deposit account under
ORS 79.0104 (1)(b) shall send to the bank with which the deposit
account is maintained an authenticated statement that releases
the bank from any further obligation to comply with instructions
originated by the secured party;
(b) A secured party having control of a deposit account under
ORS 79.0104 (1)(c) shall:
(A) Pay the debtor the balance on deposit in the deposit
account; or
(B) Transfer the balance on deposit into a deposit account in
the debtor's name;
(c) A secured party, other than a buyer, having control of
electronic chattel paper under ORS 79.0105 shall:
(A) Communicate the authoritative copy of the electronic
chattel paper to the debtor or its designated custodian;
(B) If the debtor designates a custodian that is the designated
custodian with which the authoritative copy of the electronic
chattel paper is maintained for the secured party, communicate to
the custodian an authenticated record releasing the designated
custodian from any further obligation to comply with instructions
originated by the secured party and instructing the custodian to
comply with instructions originated by the debtor; and
(C) Take appropriate action to enable the debtor or its
designated custodian to make copies of or revisions to the
authoritative copy which add or change an identified assignee of
the authoritative copy without the consent of the secured party;
(d) A secured party having control of investment property under
ORS 78.1060 (4)(b) or 79.0106 (2) shall send to the securities
intermediary or commodity intermediary with which the security
entitlement or commodity contract is maintained an authenticated
record that releases the securities intermediary or commodity
intermediary from any further obligation to comply with
entitlement orders or directions originated by the secured party;
{ - and - }
(e) A secured party having control of a letter-of-credit right
under ORS 79.0107 shall send to each person having an unfulfilled
obligation to pay or deliver proceeds of the letter of credit to
the secured party an authenticated release from any further
obligation to pay or deliver proceeds of the letter of credit to
the secured party { - . - } { + ; and
(f) A secured party having control of an electronic document
shall:
(A) Give control of the electronic document to the debtor or a
designated custodian;
(B) If the debtor designates a custodian that is the designated
custodian with which the authoritative copy of the electronic
document is maintained for the secured party, communicate to the
custodian an authenticated record releasing the designated
custodian from any further obligation to comply with instructions
originated by the secured party and instructing the custodian to
comply with instructions originated by the debtor; and
(C) Take appropriate action to enable the debtor or its
designated custodian to make copies of or revisions to the
authoritative copy that add or change an identified assignee of
the authoritative copy without the consent of the secured
party. + }
SECTION 95. ORS 79.0301 is amended to read:
79.0301. Except as otherwise provided in ORS 79.0303 to
79.0306, the following rules determine the law governing
perfection, the effect of perfection or nonperfection and the
priority of a security interest in collateral:
(1) Except as otherwise provided in this section, while a
debtor is located in a jurisdiction, the local law of that
jurisdiction governs perfection, the effect of perfection or
nonperfection and the priority of a security interest in
collateral.
(2) While collateral is located in a jurisdiction, the local
law of that jurisdiction governs perfection, the effect of
perfection or nonperfection, and the priority of a possessory
security interest in that collateral.
(3) Except as otherwise provided in subsection (4) of this
section, while { + tangible + } negotiable documents, goods,
instruments, money or tangible chattel paper is located in a
jurisdiction, the local law of that jurisdiction governs:
(a) Perfection of a security interest in the goods by filing a
fixture filing;
(b) Perfection of a security interest in timber to be cut; and
(c) The effect of perfection or nonperfection and the priority
of a nonpossessory security interest in the collateral.
(4) The local law of the jurisdiction in which the wellhead or
minehead is located governs perfection, the effect of perfection
or nonperfection and the priority of a security interest in
as-extracted collateral.
SECTION 96. ORS 79.0310 is amended to read:
79.0310. (1) Except as otherwise provided in subsection (2) of
this section and ORS 79.0312 (2), a financing statement must be
filed to perfect all security interests and agricultural liens.
(2) The filing of a financing statement is not necessary to
perfect a security interest:
(a) That is perfected under ORS 79.0308 (4), (5), (6) or (7);
(b) That is perfected under ORS 79.0309 when it attaches;
(c) In property subject to a statute, regulation or treaty
described in ORS 79.0311 (1);
(d) In goods in possession of a bailee that are perfected under
ORS 79.0312 (4)(a) or (b);
(e) In certificated securities, documents, goods or instruments
that are perfected without filing { + , control + } or possession
under ORS 79.0312 (5), (6) or (7);
(f) In collateral in the secured party's possession under ORS
79.0313;
(g) In a certificated security which is perfected by delivery
of the security certificate to the secured party under ORS
79.0313;
(h) In deposit accounts, electronic chattel paper, { +
electronic documents, + } investment property or letter-of-credit
rights that are perfected by control under ORS 79.0314;
(i) In proceeds that are perfected under ORS 79.0315; or
(j) That are perfected under ORS 79.0316.
(3) If a secured party assigns a perfected security interest or
agricultural lien, a filing under this chapter is not required to
continue the perfected status of the security interest against
creditors of and transferees from the original debtor.
SECTION 97. ORS 79.0312 is amended to read:
79.0312. (1) A security interest in chattel paper, negotiable
documents, instruments or investment property may be perfected by
filing. Except for goods in which filing is not necessary or
effective to perfect a security interest under this chapter, a
security interest in goods may be perfected by filing.
(2) Except as otherwise provided in ORS 79.0315 (3) and (4) for
proceeds:
(a) A security interest in a deposit account may be perfected
only by control under ORS 79.0314;
(b) And except as otherwise provided in ORS 79.0308 (4), a
security interest in a letter-of-credit right may be perfected
only by control under ORS 79.0314; and
(c) A security interest in money may be perfected only by the
secured party's taking possession under ORS 79.0313.
(3) While goods are in the possession of a bailee that has
issued a negotiable document covering the goods:
(a) A security interest in the goods may be perfected by
perfecting a security interest in the document; and
(b) A security interest perfected in the document has priority
over any security interest that becomes perfected in the goods by
another method during that time.
(4) While goods are in the possession of a bailee that has
issued a nonnegotiable document covering the goods, a security
interest in the goods may be perfected by:
(a) Issuance of a document in the name of the secured party;
(b) The bailee's receipt of notification of the secured party's
interest; or
(c) Filing as to the goods.
(5) A security interest in certificated securities, negotiable
documents or instruments is perfected without filing or the
taking of possession { + or control + } for a period of 20 days
from the time it attaches to the extent that it arises for new
value given under an authenticated security agreement.
(6) A perfected security interest in a negotiable document or
goods in possession of a bailee, other than one that has issued a
negotiable document for the goods, remains perfected for 20 days
without filing if the secured party makes available to the debtor
the goods or documents representing the goods for the purpose of:
(a) Ultimate sale or exchange; or
(b) Loading, unloading, storing, shipping, transshipping,
manufacturing, processing or otherwise dealing with them in a
manner preliminary to their sale or exchange.
(7) A perfected security interest in a certificated security or
instrument remains perfected for 20 days without filing if the
secured party delivers the security certificate or instrument to
the debtor for the purpose of:
(a) Ultimate sale or exchange; or
(b) Presentation, collection, enforcement, renewal or
registration of transfer.
(8) After the 20-day period specified in subsection (5), (6) or
(7) of this section expires, perfection depends upon compliance
with this chapter.
SECTION 98. ORS 79.0313 is amended to read:
79.0313. (1) Except as otherwise provided in subsection (2) of
this section, a secured party may perfect a security interest
in { + tangible + } negotiable documents, goods, instruments,
money or tangible chattel paper by taking possession of the
collateral. A secured party may perfect a security interest in
certificated securities by taking delivery of the certificated
securities under ORS 78.3010.
(2) With respect to goods that are covered by a certificate of
title issued by this state or that are manufactured structures, a
secured party may perfect a security interest in the goods by
taking possession of the goods only in the circumstances
described in ORS 79.0316 (5).
(3) With respect to collateral other than certificated
securities and goods covered by a document, a secured party takes
possession of collateral in the possession of a person other than
the debtor, the secured party or a lessee of the collateral from
the debtor in the ordinary course of the debtor's business, when:
(a) The person in possession authenticates a record
acknowledging that it holds possession of the collateral for the
secured party's benefit; or
(b) The person takes possession of the collateral after having
authenticated a record acknowledging that it will hold possession
of collateral for the secured party's benefit.
(4) If perfection of a security interest depends upon
possession of the collateral by a secured party, perfection
occurs no earlier than the time the secured party takes
possession and continues only while the secured party retains
possession.
(5) A security interest in a certificated security in
registered form is perfected by delivery when delivery of the
certificated security occurs under ORS 78.3010 and remains
perfected by delivery until the debtor obtains possession of the
security certificate.
(6) A person in possession of collateral is not required to
acknowledge that it holds possession for a secured party's
benefit.
(7) If a person acknowledges that it holds possession for the
secured party's benefit:
(a) The acknowledgment is effective under subsection (3) of
this section or ORS 78.3010 (1), even if the acknowledgment
violates the rights of a debtor; and
(b) Unless the person otherwise agrees or law other than this
chapter otherwise provides, the person does not owe any duty to
the secured party and is not required to confirm the
acknowledgment to another person.
(8) A secured party having possession of collateral does not
relinquish possession by delivering the collateral to a person
other than the debtor or a lessee of the collateral from the
debtor in the ordinary course of the debtor's business if the
person was instructed before the delivery or is instructed
contemporaneously with the delivery:
(a) To hold possession of the collateral for the secured
party's benefit; or
(b) To redeliver the collateral to the secured party.
(9) A secured party does not relinquish possession, even if a
delivery under subsection (8) of this section violates the rights
of a debtor. A person to which collateral is delivered under
subsection (8) of this section does not owe any duty to the
secured party and is not required to confirm the delivery to
another person unless the person otherwise agrees or law other
than this chapter otherwise provides.
SECTION 99. ORS 79.0314 is amended to read:
79.0314. (1) A security interest in investment property,
deposit accounts, letter-of-credit rights { + , + } { - or - }
electronic chattel paper { + or electronic documents + }may be
perfected by control of the collateral under ORS 79.0104,
79.0105, 79.0106 or 79.0107 { + or section 54 of this 2009
Act + }.
(2) A security interest in deposit accounts, electronic chattel
paper { + , + } { - or - } letter-of-credit rights { + or
electronic documents + } is perfected by control under ORS
79.0104, 79.0105 or 79.0107 { + or section 55 of this 2009
Act + } when the secured party obtains control and remains
perfected by control only while the secured party retains
control.
(3) A security interest in investment property is perfected by
control under ORS 79.0106 from the time the secured party obtains
control and remains perfected by control until:
(a) The secured party does not have control; and
(b) One of the following occurs:
(A) If the collateral is a certificated security, the debtor
has or acquires possession of the security certificate;
(B) If the collateral is an uncertificated security, the issuer
has registered or registers the debtor as the registered owner;
or
(C) If the collateral is a security entitlement, the debtor is
or becomes the entitlement holder.
SECTION 100. ORS 79.0317 is amended to read:
79.0317. (1) A security interest or agricultural lien is
subordinate to the rights of:
(a) A person entitled to priority under ORS 79.0322; and
(b) Except as otherwise provided in subsection (5) of this
section, a person that becomes a lien creditor before the earlier
of the time:
(A) The security interest or agricultural lien is perfected; or
(B) One of the conditions specified in ORS 79.0203 (2)(c) is
met and a financing statement covering the collateral is filed.
(2) Except as otherwise provided in subsection (5) of this
section, a buyer, other than a secured party, of tangible chattel
paper, { + tangible + } documents, goods, instruments or a
security certificate takes free of a security interest or
agricultural lien if the buyer gives value and receives delivery
of the collateral without knowledge of the security interest or
agricultural lien and before it is perfected.
(3) Except as otherwise provided in subsection (5) of this
section, a lessee of goods takes free of a security interest or
agricultural lien if the lessee gives value and receives delivery
of the collateral without knowledge of the security interest or
agricultural lien and before it is perfected.
(4) A licensee of a general intangible or a buyer, other than a
secured party, of accounts, electronic chattel paper, { +
electronic documents, + } general intangibles or investment
property other than a certificated security takes free of a
security interest if the licensee or buyer gives value without
knowledge of the security interest and before it is perfected.
(5) Except as otherwise provided in ORS 79.0320 and 79.0321, if
a person files a financing statement with respect to a
purchase-money security interest before or within 20 days after
the debtor receives delivery of the collateral, the security
interest takes priority over the rights of a buyer, lessee or
lien creditor which arise between the time the security interest
attaches and the time of filing.
SECTION 101. ORS 79.0338 is amended to read:
79.0338. Except for information on the jurisdiction of
organization for an organization that is not a registered
organization, if a security interest or agricultural lien is
perfected by a filed financing statement providing information
described in ORS 79.0516 (2)(e) which is incorrect at the time
the financing statement is filed:
(1) The security interest or agricultural lien is subordinate
to a conflicting perfected security interest in the collateral to
the extent that the holder of the conflicting security interest
gives value in reasonable reliance upon the incorrect
information; and
(2) A purchaser, other than a secured party, of the collateral
takes free of the security interest or agricultural lien to the
extent that, in reasonable reliance upon the incorrect
information, the purchaser gives value and, in the case of { +
tangible + } chattel paper, { + tangible + } documents, goods,
instruments or a security certificate, receives delivery of the
collateral.
SECTION 102. ORS 79.0601 is amended to read:
79.0601. (1) After default, a secured party has the rights
provided in ORS 79.0601 to 79.0628 and, except as otherwise
provided in ORS 79.0602, those provided by agreement of the
parties. A secured party:
(a) May reduce a claim to judgment, foreclose, or otherwise
enforce the claim, security interest or agricultural lien by any
available judicial procedure; and
(b) If the collateral is documents, may proceed either as to
the documents or as to the goods they cover.
(2) A secured party in possession of collateral or control of
collateral under ORS 79.0104, 79.0105, 79.0106 or 79.0107 { + or
section 54 of this 2009 Act + } has the rights and duties
provided in ORS 79.0207.
(3) The rights under subsections (1) and (2) of this section
are cumulative and may be exercised simultaneously.
(4) Except as otherwise provided in subsection (7) of this
section and ORS 79.0605, after default, a debtor and an obligor
have the rights provided in ORS 79.0601 to 79.0628 and by
agreement of the parties.
(5) If a secured party has reduced its claim to judgment, the
lien of any levy that may be made upon the collateral by virtue
of an execution based upon the judgment relates back to the
earliest of:
(a) The date of perfection of the security interest or
agricultural lien in the collateral;
(b) The date of filing a financing statement covering the
collateral; or
(c) Any date specified in a statute under which the
agricultural lien was created.
(6) A sale pursuant to an execution is a foreclosure of the
security interest or agricultural lien by judicial procedure
within the meaning of this section. A secured party may purchase
at the sale and thereafter hold the collateral free of any other
requirements of this chapter.
(7) Except as otherwise provided in ORS 79.0607 (3), ORS
79.0601 to 79.0628 impose no duties upon a secured party that is
a consignor or is a buyer of accounts, chattel paper, payment
intangibles or promissory notes.
SECTION 103. ORS 84.007 is amended to read:
84.007. (1) Except as otherwise provided in subsection (2) of
this section, ORS 84.001 to 84.061 apply to electronic records
and electronic signatures relating to a transaction.
(2) ORS 84.001 to 84.061 do not apply to a transaction to the
extent it is governed by:
(a) A law governing the creation and execution of wills,
codicils or testamentary trusts; or
(b) The Uniform Commercial Code other than { - ORS 71.1070
and 71.2060 and - } ORS chapters 72 and 72A.
(3) ORS 84.001 to 84.061 apply to an electronic record or
electronic signature otherwise excluded from the application of
ORS 84.001 to 84.061 under subsection (2) of this section to the
extent it is governed by a law other than those specified in
subsection (2) of this section.
(4) A transaction subject to ORS 84.001 to 84.061 is also
subject to other applicable substantive law.
SECTION 104. ORS 87.142 is amended to read:
87.142. As used in ORS 87.142 to 87.490 and 87.910, unless the
context otherwise requires:
(1) 'Animal' means any mammal, bird, fish, reptile, amphibian
or insect.
(2) 'Chattel' includes movable objects that are capable of
{ - ownership - } { + being owned + }, but does not include
personal rights not reduced to possession but recoverable by an
action at law or suit in equity, money, evidence of debt and
negotiable instruments.
(3) 'Electric cooperative' means a cooperative corporation
organized under ORS chapter 62 the principal business of which is
the construction, maintenance and operation of an electric
transmission and distribution system for the benefit of the
members of that cooperative corporation and which has no other
principal business or purpose.
(4) 'Electric utility' means a corporation engaged in
distributing electricity, directly or indirectly, to or for the
public and regulated by the Public Utility Commission under ORS
chapter 757.
(5) 'Excavation' means a shaft, tunnel, incline, adit, drift or
other excavation designed for the use, working or draining of a
mine.
(6) 'Fair market value' means, with respect to a chattel sold
at a foreclosure sale under ORS { - 9.370, 87.142 to 87.490,
87.910 and 90.120 - } { + chapter 87 + }, the price of chattels
of the same kind and condition prevailing in the county of sale
at the time of sale.
(7) 'Fungible chattels' means chattels of which any unit is the
equivalent of any other unit.
(8) 'Improvement' means a road, tramway, trail, flume, ditch,
pipeline, building, structure, superstructure or boardinghouse
used for or in connection with the working or development of a
mine.
(9) 'Irrigation' includes the use of canals, ditches, pipes,
pumps, spraying apparatus and other mechanical devices to water
land artificially.
(10) 'Mine' means a mine, lode, mining claim or deposit that
contains or may contain coal, metal or mineral of any kind.
(11) 'Mortgagee' means a person who has a valid subsisting
mortgage of record or trust deed of record securing a loan upon
any real property to be charged with a lien under ORS 87.352 to
87.362.
(12) 'Nursery stock' means fruit trees, fruit-tree stock, nut
trees, grapevines, fruit bushes, rose bushes, rose stock, forest
and ornamental trees, and shrubs both deciduous and evergreen,
florists' stock and cuttings, scions and seedlings of fruit or
ornamental trees and shrubs, and all other fruit-bearing plants
and parts thereof and plant products for propagation or planting.
(13) 'Owner' includes:
(a) A person who has title to a chattel or real property;
(b) A person who is in possession of a chattel or real property
under an agreement for the purchase thereof, whether the title
thereto is in the person or the vendor of the person; or
(c) A person who is in lawful possession of a chattel or real
property.
(14) 'Person' includes individuals, corporations, associations,
firms, partnerships and joint stock companies.
(15) 'Security interest' means an interest in a chattel
reserved or created by an agreement that secures payment or
performance of an obligation as more particularly defined by ORS
{ - 71.2010 (37) - } { + 71.2010 (2)(ii) + }.
(16) 'Timbers' means sawlogs, spars, piles, felled logs and
other wood growth that has been cut or separated from land.
(17) 'Wood products' includes lumber, slabwood, plywood and
other wood products produced from timbers. The term does not
include paper or products made from paper.
SECTION 105. ORS 87.700 is amended to read:
87.700. As used in ORS 87.228 and 87.700 to 87.736, unless the
context otherwise requires:
(1) 'Agricultural produce' means horticultural products,
viticultural products, fruit, berries, vegetables, hops, mint
oil, hazelnuts or other nuts, dairy products, bee products,
vermiculture products, hay or straw baled and prepared for
market, meat animals and Christmas trees as defined in ORS
571.505.
(2) 'Agricultural producer' means a person that engages in or
has engaged in the business of growing or producing agricultural
produce for market or for delivery or transfer to others owning
or holding title to the produce. 'Agricultural producer' includes
a landowner, producer, landlord, tenant, sharecropper or other
person who participates in the growing of agricultural produce
and receives a share of the produce.
(3) 'Meat animal' has the meaning for that term provided in ORS
603.010.
(4) 'Person' means individual, corporation, partnership,
association, joint stock company, trust, limited liability
company, limited liability partnership, cooperative, government
entity, unincorporated organization or other business entity.
(5) 'Purchaser' does not include a cooperative organized and
operating under ORS chapter 62, including a foreign cooperative
authorized to do business in this state under ORS chapter 60, if
the agricultural producer is a member of the cooperative.
(6) 'Security interest' has the meaning given that term in ORS
{ - 71.2010 (37) - } { + 71.2010 (2)(ii) + }.
SECTION 106. ORS 646A.030 is amended to read:
646A.030. As used in ORS 646A.030 to 646A.042, unless the
context requires otherwise:
(1) 'Business day' means any day except a Sunday or a legal
holiday.
(2) 'Buyer' means a person who purchases health spa services.
(3) 'Conspicuous' has the meaning given that term in ORS
{ - 71.2010 (10) - } { + 71.2010 (2)(j) + }.
(4) 'Health spa' means any person engaged, as a primary
purpose, in the sale of instruction, training, assistance or use
of facilities that are purported to assist patrons in physical
exercise, weight control or figure development. The term also
includes any person engaged primarily in the sale of the right or
privilege to use tanning booths, exercise equipment or
facilities, such as a sauna, whirlpool bath, weight-lifting room,
massage, steam room, or other exercising machine or device.
'Health spa ' does not include any facility owned and operated by
the State of Oregon or any of its political subdivisions.
(5) 'Health spa services' means services, privileges or rights
offered for sale by a health spa.
(6) 'Person' has the meaning given that term in ORS 646.605
(4).
SECTION 107. ORS 650.210 is amended to read:
650.210. Without limiting the other provisions of ORS 650.200
to 650.250, the following specific rights and prohibitions shall
govern the relationship between the franchisor and the
franchisee. It shall be unlawful and a violation of ORS 650.200
to 650.250 for any franchisor to:
(1) Require a franchisee to purchase or lease goods or services
of a franchisor or from approved sources of supply unless and to
the extent that the franchisor satisfies the burden of proving
that such restrictive purchasing agreements are reasonably
necessary for a lawful purpose justified on business grounds, and
do not substantially affect competition. This subsection does not
apply to the initial inventory of the franchise. A determination
of whether such restrictive purchasing agreements are reasonably
necessary for a lawful purpose justified on business grounds and
do not substantially affect competition shall be guided by the
decisions of the courts of the United States in interpreting and
applying the antitrust laws of the United States.
(2) Sell, rent or offer to sell or rent to a franchisee any
product, service or property at a price not set in good faith as
defined in ORS { - 72.1030 (1)(b) - } { + 71.2010 (2)(t) + }.
(3) Require a franchisee to assent to a release, assignment,
novation or waiver which would relieve any person from liability
imposed by ORS 650.200 to 650.250.
(4) Refuse to renew a franchise without fairly compensating the
franchisee for the fair market value at the time of expiration of
the franchise of the franchisee's resalable inventory, supplies,
equipment and furnishings purchased from the franchisor, not
including personalized materials that have no value to the
franchisor and inventory, supplies, equipment and furnishings not
reasonably required in the conduct of the franchise business. A
franchisor may offset against amounts owed to a franchisee under
this subsection any amounts owed by such franchisee to the
franchisor.
(5) Impose on a franchisee by contract, rule or regulation,
whether written or oral, any standard of conduct unless the
person so doing can sustain the burden of proving the standard of
conduct to be reasonable.
SECTION 108. ORS 777.770 is amended to read:
777.770. For the purpose of carrying into effect all or any of
its powers, an export trading corporation may:
(1) Borrow money, evidence such borrowing with its promissory
notes or other obligations of indebtedness, and pledge in whole
or in part any of its assets or revenues not subject to prior
liens or pledges.
(2) Issue and sell revenue bonds in the manner and upon the
terms and conditions authorized by ORS 777.560 to 777.590.
(3) Purchase, negotiate and sell letters of credit, bills of
lading, dock receipts, dock warrants, drafts and other documents
of title as defined in ORS { - 71.2010 (15) - } { + 71.2010
(2)(p) + }.
SECTION 109. ORS 801.465 is amended to read:
801.465. 'Security interest' means an interest in a vehicle
reserved or created by agreement and which secures payment or
performance of an obligation as more particularly defined by ORS
{ - 71.2010 (37) - } { + 71.2010 (2)(ii) + }.
SECTION 110. ORS 830.700 is amended to read:
830.700. As used in ORS 830.060 to 830.145, 830.700 to 830.715,
830.725, 830.730, 830.770, 830.780, 830.785, 830.795 to 830.820
and 830.830 to 830.870, unless the context requires otherwise:
(1) 'Boat' means every description of watercraft used or
capable of being used as a means of transportation on the water,
but does not include aircraft equipped to land on water,
boathouses, floating homes, air mattresses, beach and water toys
or single inner tubes.
(2) 'Boathouse' means a covered structure on floats or piles
used for the protected moorage of boats.
(3) 'Dealer' means a person who engages wholly or in part in
the business of buying, selling or exchanging boats, floating
homes or boathouses, either outright or on conditional sale,
bailment lease, chattel mortgage or otherwise.
(4) 'Floating home' means a moored structure that is secured to
a pier or pilings and is used primarily as a domicile and not as
a boat.
(5) 'Operate' means to navigate or otherwise use a boat on
water.
(6) 'Owner' means a person or persons who have a property
interest other than a security interest in a boat, floating home
or boathouse and the right of use or possession of the boat,
floating house or boathouse, but does not include a lessee.
(7) 'Ownership' means a property interest other than a security
interest.
(8) 'Security interest' means an interest reserved or created
by agreement which secures payment or performance of an
obligation as more particularly defined by ORS { - 71.2010
(37) - } { + 71.2010 (2)(ii) + }.
(9) 'State of principal use' means the state on whose waters a
boat is used or to be used during most of a calendar year.
SECTION 111. ORS 87.685 is amended to read:
87.685. As used in ORS 87.685 to 87.693, unless the context
requires otherwise:
(1) 'Default' means the failure to perform in a timely manner
any obligation or duty set forth in the rental agreement.
(2) 'Last known address' means the address provided by the
occupant in the latest rental agreement or the address provided
by the occupant in a subsequent written notice of a change of
address.
(3) 'Occupant' means a person or a sublessee, successor or
assignee of the person who is entitled, under a rental agreement,
to the exclusive use of specified storage space at a self-service
storage facility.
(4) 'Owner' means the owner, operator, lessor or sublessor of a
self-service storage facility or an agent or any other person
authorized by the owner, operator, lessor or sublessor to manage
the facility or to receive rent from an occupant under a rental
agreement.
(5) 'Personal property' means movable property not affixed to
land and includes, but is not limited to, goods, merchandise,
household items and watercraft.
(6) 'Rental agreement' means any written agreement or lease
that establishes or modifies the terms, conditions, rules or any
other provisions concerning the use and occupancy of a
self-service storage facility.
(7) 'Self-service storage facility' means any real property
designed and used for the purpose of renting or leasing
individual storage space to occupants who are to have access to
the storage space for the purpose of storing and removing
personal property. The term does not include a warehouse or
other facility used for storage of personal property and at which
a warehouse receipt, bill of lading or other document of title
covering the personal property is issued under ORS chapter 77 by
the { - warehouseman or other - } person operating the
facility. The term 'self-service storage facility' does not
include real property used for residential purposes.
SECTION 112. ORS 586.400 is amended to read:
586.400. (1) Except as otherwise provided in subsection (2) of
this section, the duty of a { - warehouseman - }
{ + warehouse + } receiving grain for storage or shipment in a
public warehouse operated by the { - warehouseman - }
{ + warehouse + } shall be governed by the provisions of ORS
77.4030.
(2) A { - warehouseman's - } { + warehouse's + } duty to
deliver grain is fulfilled if delivery is made to the several
owners in the order of demand as rapidly as it can be done by
ordinary diligence; where delivery is made within 48 hours after
facilities for receiving the grain are provided, such delivery is
deemed to comply with this subsection.
(3) No { - warehouseman - } { + warehouse + } shall fail to
deliver grain as provided in this section.
(4) In addition to being subject to penalties under ORS 586.990
for violation of subsection (3) of this section, if a
{ - warehouseman - } { + warehouse + } fails to deliver grain
as provided in this section, the person entitled to delivery of
the grain may maintain an action against the
{ - warehouseman - } { + warehouse + } for any damages
resulting from the { - warehouseman's - } { + warehouse's + }
failure to deliver. In any such action the person entitled to
delivery of the grain has the option to seek recovery of actual
damages or of liquidated damages of one cent per bushel for each
day's delay.
SECTION 113. ORS 586.561 is amended to read:
586.561. (1) Any person operating a public warehouse who
desires to discontinue the operation shall at least 30 days prior
to the date of expiration or closing date notify, by certified or
registered mail, at the last-known address all holders of
warehouse receipts, all persons storing grain in such warehouse
and the department of the intention to discontinue the public
warehouse business.
(2) If the address of any holder of a warehouse receipt or
persons storing grain is unknown, then the person operating a
public warehouse shall also give notice of the intention to
discontinue the operation of a public warehouse by publication in
some newspaper of general circulation in the county once a week
for two consecutive weeks. The date of the second published
notice shall be at least 30 days prior to the date of expiration
of the operations.
(3) It shall be the duty of owners of such grain to remove, or
cause to be removed, their grain from such warehouse before the
expiration date.
(4) If the { - warehouseman - } { + warehouse + } has not
notified all persons or holders of warehouse receipts as provided
in subsection (1) of this section or published a notice as
provided by subsection (2) of this section, and if at the
expiration date of the operations of the { - warehouseman - }
{ + warehouse + } there are outstanding warehouse receipts
covering grain in storage in the warehouse, or in the opinion of
the department there is reasonable evidence of outstanding
liability by the { - warehouseman - } { + warehouse + } under
ORS chapter 77 or this chapter, then:
(a) The { - warehouseman - } { + warehouse + } is required
to apply for, obtain and maintain a bond as provided for in ORS
586.300 until such date that the State Department of Agriculture
determines all grain has been removed from the warehouse or the
rights or claims of all holders of warehouse receipts have been
protected and satisfied.
(b) The department may invoke and is authorized to use the
procedures and authority as provided for in ORS 586.525. The
department is authorized to carry out and the
{ - warehouseman - } { + warehouse + } is subject to the
provisions of ORS 586.525 regardless of the fact that the license
of the { - warehouseman - } { + warehouse + } may have
expired.
SECTION 114. ORS 586.720 is amended to read:
586.720. (1) Except as provided in subsection (2) of this
section, every public warehouse { - and warehouseman - }
complying with the provisions of ORS 586.210 to 586.730 is exempt
from all the provisions of all other laws of this state
regulating and licensing warehouses { - and warehousemen - } .
(2) The provisions of ORS chapter 77 apply to public warehouses
{ - and warehousemen - } complying with the provisions of ORS
586.210 to 586.730 to the extent that the provisions of ORS
chapter 77 are not inconsistent with the provisions of ORS
586.210 to 586.730.
SECTION 115. { + (1) The amendments to ORS 71.2010, 72.1030,
72.1040, 72.3100, 72.3230, 72.4010, 72.5030, 72.5050, 72.5060,
72.5090, 72.6050, 72.7050, 72A.1030, 72A.5140, 72A.5260, 74.1040,
74.2100, 77.1020, 77.1030, 77.1040, 77.1050, 77.2010, 77.2020,
77.2030, 77.2040, 77.2050, 77.2060, 77.2070, 77.2080, 77.2090,
77.2100, 77.3010, 77.3020, 77.3030, 77.3040, 77.3050, 77.3070,
77.3080, 77.3090, 77.4010, 77.4020, 77.4030, 77.4040, 77.5010,
77.5020, 77.5030, 77.5040, 77.5050, 77.5060, 77.5070, 77.5080,
77.5090, 77.6010, 77.6020, 77.6030, 78.1030, 79.0102, 79.0203,
79.0207, 79.0208, 79.0301, 79.0310, 79.0312, 79.0313, 79.0314,
79.0317, 79.0338 and 79.0601 by sections 8, 24, 25, 27, 28, 29,
30, 31, 32, 33, 34, 35, 36, 38, 41, 45, 46, 50, 51, 52, 53, 55,
56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71,
72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87,
88, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101 and 102 of
this 2009 Act apply only to a document of title that is issued or
a bailment that arises on or after the effective date of this
2009 Act and do not apply to a right of action that has accrued
before the effective date of this 2009 Act.
(2) The amendments to ORS 71.2020, 71.2030, 71.2040, 71.2050
and 71.2060 by sections 9, 10, 11, 12 and 13 of this 2009 Act
apply on and after the effective date of this 2009 Act to
transactions that are subject to the Uniform Commercial Code as
enacted before the effective date of this 2009 Act.
(3) Sections 14, 15, 16, 17, 18, 19, 20, 21, 22 and 23 of this
2009 Act apply on and after the effective date of this 2009 Act
to transactions that are subject to the Uniform Commercial Code
as enacted before the effective date of this 2009 Act. + }
SECTION 116. { + ORS 71.1090, 71.2070, 71.2080, 72.2080,
72A.2070 and 77.6040 are repealed. + }
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