Chapter 71

71.1010

NOTES OF DECISIONS

Where an agreement is clear upon its face, a court should be hesitant to infer waiver from the post-agreement conduct of the secured creditor. Community Bank v. Jones, 278 Or 647, 566 P2d 470 (1977)

71.1020

LAW REVIEW CITATIONS: 69 OLR 872 (1990)

71.1030

NOTES OF DECISIONS

A check payable jointly may be negotiated only by endorsement of all payees, and defendant bank’s conduct in paying the entire proceeds to one payee without the endorsement of and to the exclusion of the other payee constituted conversion. Berkheimers, Inc. v. Citizens Valley Bank, 270 Or 807, 529 P2d 903 (1974)

The general principles of conversion remain in force by virtue of this section. Berkheimers, Inc. v. Citizens Valley Bank, 270 Or 807, 529 P2d 903 (1974)

This section does not permit application of common law duty of good faith in transactions under [former] ORS chapter 79 to which only statutory duty of good faith under ORS 71.2010 (19) applies. U.S. National Bank v. Boge 311 Or 550, 814 P2d 1082 (1991)

LAW REVIEW CITATIONS: 75 OLR 493 (1996)

71.1070

LAW REVIEW CITATIONS: 69 OLR 872 (1990)

71.2010

NOTES OF DECISIONS

An option price that was 10 percent of the value of the property at the time the option was to be exercised was nominal consideration. Peco, Inc. v. Hartbauer Tool & Die Co., 262 Or 573, 500 P2d 708 (1972)

The test for “nominal consideration” is a comparison of the option price with the market value of the property at the time the option is to be exercised. Peco, Inc. v. Hartbauer Tool & Die Co., 262 Or 573, 500 P2d 708 (1972)

Where a signed writing is attached to an unsigned writing, the signature on the one is adequate for the other. Pyle v. Wolf Corp., 354 F Supp 346 (1972)

The fact that notice of a nonpossessory lien had been filed did not constitute knowledge thereof with respect to one who did not have actual knowledge. Balzer Mach. Co. v. Klineline Sand & Gravel Co., 271 Or 596, 533 P2d 321 (1975)

If a party fails to make an inquiry for the purpose of remaining ignorant of facts which he believes or fears would disclose a defect in the transaction, he may be found to have acted in bad faith. Community Bank v. Ell, 278 Or 417, 564 P2d 685 (1977)

A creditor cannot claim a perfected security interest in collateral unless it has an enforceable security agreement with the debtor which describes the collateral to be charged with the security interest. Community Bank v. Jones, 278 Or 647, 566 P2d 470 (1977)

Where computer lease provided that rental payments accelerated on default, that lessee bore risk of loss and responsibility for insurance and taxes, and where computer was selected by and purchased specifically for lessee, lease was “intended for security.” All-States Leasing v. Ochs, 42 Or App 319, 600 P2d 899 (1979)

Terms of contract making limited warranty and expressely disclaiming all other express or implied warranties was not “conspicuous” within meaning of this section. Seibel v. Layne & Bowler, Inc., 56 Or App 387, 641 P2d 668 (1982), Sup Ct review denied

Plaintiffs were not “buyers in the ordinary course of business” where they received notice of assignment of account to secured party but relied on principal of assignor of the account for instructions as to payment. Quinn v. Scheu, 66 Or App 644, 675 P2d 1078 (1984), Sup Ct review denied

Where disclaimer is in large, bold face print, entirely in capital letters and labeled a disclaimer, it is conspicuous under this section. Agristor Credit Corp. v. Schmidlin, 601 F Supp 1307 (1985)

Disclaimer in bolded capital letters on face of one page contract was conspicuous. Duyck v. Northwest Chemical Corp., 94 Or App 111, 764 P2d 943 (1988), Sup Ct review denied

Statutory duty of good faith in this section displaces common law duty of good faith in transactions to which [former] ORS chapter 79 applies and this statutory standard means “honesty in fact in the conduct or transaction concerned” and does not require fair dealing or more than honesty. U.S. National Bank v. Boge 311 Or 550, 814 P2d 1082 (1991)

Where contract used several sizes of print and other attention diverting devices, disclaimer was inconspicuous. Anderson v. Ashland Rental, Inc., 122 Or App 508, 858 P2d 470 (1993)

Inability to obtain certificate of title at time of purchasing automobile did not put buyer on notice and disqualify buyer as purchaser in ordinary course of business. Thorn v. Adams, 125 Or App 257, 865 P2d 417 (1993)

Fact that first disclaimer in document was inconspicuous did not render second disclaimer inconspicuous. Northwest Pine Products v. Cummins Northwest, Inc., 126 Or App 219, 868 P2d 21 (1994)

LAW REVIEW CITATIONS: 26 WLR 348 (1990); 75 OLR 493 (1996)

71.2030

NOTES OF DECISIONS

In absence of evidence of the terms of the contract between the parties it cannot be determined whether the obligation of good faith has been performed. Family Provisioners, Inc. v. Columbia Acceptance Co., 274 Or 303, 545 P2d 1379 (1976)

When no minimum duration is stated in contract, general rule is that it is terminable at will by either party subject to obligation of ORS 72.3090 to give reasonable notice and general obligation to act in good faith as stated in this section. Zidell Explorations, Inc. v. Conval Internation, Ltd., 719 F2d 1465 (1983)

LAW REVIEW CITATIONS: 75 OLR 493 (1996)

71.2040

NOTES OF DECISIONS

This section broadens the range of facts available for the court’s consideration in determining whether there has been an offer and seasonable acceptance but cannot cause a contract to be formed where there has been no meeting of minds between the parties. Meister v. Arden-Mayfair, Inc., 276 Or 517, 555 P2d 923 (1976)

71.2050

NOTES OF DECISIONS

Evidence of a course of dealing has no probative value when the parties have entered into a written agreement governing their rights and neither the agreement nor any evidence of its terms is produced at trial. Family Provisioners, Inc. v. Columbia Acceptance Co., 274 Or 303, 545 P2d 1379 (1976)

71.2070

NOTE: Repealed January 1, 2010

See annotations under ORS 71.3080.

71.2080

NOTE: Repealed January 1, 2010

See annotations under ORS 71.3090.

71.3080

NOTES OF DECISIONS

Under former similar statute (ORS 71.2070)

This statute does not alter the common law principles of accord and satisfaction; its purpose is to protect against waiver and estoppel. Les Schwab Tire Centers v. Ivory Ranch, 63 Or App 364, 664 P2d 419 (1983)

Under this section, franchisee who signs successor contract under protest and promptly seeks to invoke its rights under Petroleum Marketing Practices Act, 15 U.S.C. 2805 (1982), has not “renewed” franchise relationship so as to bar relief under that Act. Pro Sales, Inc. v. Texaco, U.S.A., 792 F2d 1394 (1986)

71.3090

NOTES OF DECISIONS

Under former similar statute (ORS 71.2080)

Defendant was entitled to exercise its right to repossess automobile where, inter alia plaintiff was repeatedly late with payments, was twice unemployed during period of loan, was warned about possibility of repossession and defendant had reason to believe it had no right of recourse against car dealer if plaintiff failed to make payments. Salsberry v. Ford Motor Credit Co., 54 Or App 522, 635 P2d 669 (1981), Sup Ct review denied

There was no substantial evidence that defendant acted in bad faith or that its claim of insecurity was dishonest. Salsberry v. Ford Motor Credit Co., 54 Or App 522, 635 P2d 669 (1981), Sup Ct review denied