Law Commons^™

Check Payment: Finality Under The Uniform Commercial Code, John P. Finan

Akron Law Review

May a Bank which pays a check by mistake recover the payment? The answer has traditionally depended upon the law of restitution as modified to fit the peculiar necessities of the law of bills and notes.' Such law determines whether payment may be recovered by balancing the equities between the parties. The leading case in this field is Price v. Neal, which holds that if the payor and the person paid are equally innocent, the law will not shift the loss from one innocent person to another. In Price the signature of the drawer was forged. Unlike the Negotiable Instruments …

Constitutional Law And Secured Transactions: State Action V. Private Action - Uniform Commercial Code Self-Help; Repossession Provisions - Do Not Violate Due Process Requirements; Adams V. Southern California First National Bank, David M. Hunter

Akron Law Review

Several years ago, the United States Supreme Court, in Sniadach v. Family Finance Corp.,' signaled what has been eventually interpreted in subsequent decisions as the strict measurement of creditors' rights against the requirements of due process set forth in the fourteenth amendment. What has since transpired has been an onslaught of litigation in this area of such magnitude that the due process requirements of prior notice and hearing found in Sniadach have been extended to virtually all forms of prejudgment remedies available to the aggrieved creditor. Despite all of this, the rationale of the Court of Appeals for the Ninth …

Negotiable Instruments - Forged Indorsements - Liability Of Payor And Collecting Banks - Uniform Commercial Code §3-419; Cooper V. Union Bank, James A. Wagner

Akron Law Review

The holding in Cooper v. Union Bank' is based on the court's interpretation of Uniform Commercial Code (hereinafter Code) section 3-4192 and the application of this section to collecting and payor banks.

Joseph Stell brought an action in conversion s as payee and true owner to recover funds paid by defendant banks on checks cashed by Stell's secretary. The secretary forged plaintiff's indorsement on twenty-nine checks over a sixteen-month period, cashing the checks at both payor and collcting banks. In an opinion affirmed by the appellate court the trial court held that the defendant banks qualified as representatives, acted in …

Wrongful Dishonor Under The Ucc: A Trip Through The Maze Of 4-402, David J. Leibson

Akron Law Review

WHEN MY NEGOTIABLE INSTRUMENTS CLASS is ready to consider Section 4-402 of the Uniform Commercial Code, I always like to start out by asking if anyone would have worded the language differently had they been drafting the section. Usually one of the first responses is to the effect that 4-402 is fine just the way it is because a bank should be made to answer to its customer if it fails to honor a properly payable item drawn upon it. My response to such an answer is twofold. First, I wholeheartedly agree that a bank should be held responsible for …

A Look At A Strict Construction Of Section 2-207 Of The Uniform Commercial Code From The Seller's Point Of View Or What's So Bad About Roto-Lith?, Thomas E. Liggett

Akron Law Review

This is an examination of the workings of section 2-207 of the Uniform Commercial Code in the form contract between merchants. More specifically, the literal interpretation of the Section is to be investigated as to its effect on the practical formation of the sales contract A basic assumption of this comment is that the terms of the Code which may, under section 2-207 be "read into" a contract, are repugnant to the seller. This, I think, is obvious. It should, however, be kept in mind that, between merchants, both parties may be assumed to be "big boys." Therefore, the problem …

Default Proceedings Under Article 9: Problems, Solutions, And Lessons To Be Learned, Leonard Lakin

Akron Law Review

This article will explore in detail the relevant Code provisions relating to default proceedings and the impact of the significant court decisions which have interpreted this most important area of secured transactions as well as the changes made by -the 1972 Official Text of Article 9, which has already been adopted in ten states as of this writing.

The Timing Of Perfection Of Security Interests Under The Uniform Commercial Code And The Bankruptcy Reform Act, Richard A. Mann, Michael J. Phillips

Akron Law Review

This article will examine this new relationship as it applies to a specific problem created by the interaction between Article 9 and bankruptcy law: the timing of a "transfer" when a security interest is challenged as preferential in a bankruptcy proceeding. Resolution of this question is often critical for determining the secured party's ability to recover assets pledged as collateral when the debtor goes into bankruptcy. The article will begin by explaining the "timing of transfer" problem as it arose under Article 9 and the Bankruptcy Act. Then it will describe and evaluate the new solution provided by the Bankruptcy …

Section 542(C) Of The Bankruptcy Reform Act Of 1978 And Section 4-303 Of The Ucc: A Less Than Perfect Fit?, John P. Finan

Akron Law Review

The Uniform Commercial Code (UCC) 4-303 addresses two areas where the UCC and the Bankruptcy Code intersect. The first relates to the vulnerability of drawee banks that honor checks after their customer has taken bankruptcy (has filed a voluntary petition or is the defendant in an involuntary case); the second relates to the timing of transfers made by check under 547 of the Bankruptcy Code (the preference section). In both areas there is a less than perfect fit between the Bankruptcy Code and UCC 4-303. The first area poses problems for practitioners whose clients have received notice of bankruptcy in …

Computer Software Contracts: A Review Of The Caselaw, Andrew Rodau

Akron Law Review

The pervasiveness of computers in our society has led to numerous legal controversies involving computers and computer transactions. Conflicts between buyers and sellers of computer software have resulted in, and will continue to result in, both tort and breach of contract actions to redress disputes. This article focuses on those contract actions involving computer software.

A fundamental issue in resolving a contract dispute involving a software transaction is whether article 2 of the Uniform Commercial Code (hereinafter UCC) or the common law governs. It has been recognized that whether article 2 applies to computer software contracts is very significant especially …

An Analysis Of Warranty Claims Instituted By Non-Privity Plaintiffs In Jurisdictions That Have Adopted Uniform Commerical Code Section 2-318 (Alternatives B & C), William L. Stallworth

Akron Law Review

The purpose of this Article is to discuss case law developments under Uniform Commercial Code Section 2-318 Alternatives B3 and C.4. The Article will also propose a solution to various problems that arise under section 2-318 in the the law of defenses. In order to follow this discussion, one must understand the law of warranty claims and defenses under Article 2 of the Uniform Commercial Code (henceforth, the "Code" or the "UCC").

The U.C.C. Section 4-205(2) Payment/Deposit Warranty: Allow A Drawer To Hold A Depositary Bank Liable For Collecting An Item With A Forged Indorsement, Richard Scislowski

Akron Law Review

As written, the new section 4-205(2) Payment/Deposit Warranty may provide a new theory upon which to hold a depositary bank liable for handling a stolen check for the benefit of a thief. This Comment will propose that the word "customer" as used in U.C.C. section 4-205 should not be read to include a thief that steals a check, forges an indorsement, and transfers the item to a depositary bank for collection. Such a reading would allow the drawer of the stolen check to sue the depositary bank for breach of warranty. This Comment will first describe the existing recourses available …

Good Faith: A New Look At An Old Doctrine, Robert S. Adler, Richard A. Mann

Akron Law Review

In this article we sketch the basic contours of the contractual policing devices that apply to special relationships and to arm's length transactions. We then explicate in greater detail the duty of good faith under general contract law and the Uniform Commercial Code. Finally, we explore some strategies for shortening arm's length transactions through consensual extensions of the duty of good faith.

Unconscionability As A Contract Policing Device For The Elder Client: How Useful Is It?, Robyn L. Meadows

Akron Law Review

An elder law symposium provides an opportunity to consider ways that the various areas of the law provide protection for the older client. This raises the question of whether the Uniform Commercial Code (hereafter U.C.C. or the Code) protects the unique interests of the older consumer. Such consideration naturally leads to the contract policing device specifically included in the Code—unconscionability. The doctrine of unconscionability provides a way for courts to police grossly unfair contracts and contract provisions. It is found not only in the U.C.C. but also in the tenets of general contract law. However, its application is not limited …