Law Commons^™

Replacing Strict Liability With A Contract-Based Products Liability Regime, Richard C. Ausness

Law Faculty Scholarly Articles

When strict products liability first appeared on the scene some thirty-five years ago, it was heralded as a boon to consumers whose claims to compensation had hitherto been frustrated by the law of sales. Warranty law, it was said, worked fairly well in purely "commercial" transactions, but tort law did a better job in cases where ordinary consumers suffered personal injuries or property damage from defective products. To be sure, defenders of warranty law pointed out that the newly-drafted Uniform Commercial Code (the "Code" or "U.C.C.") was much more consumer friendly than the old Uniform Sales Act. Nevertheless, the proponents …

They Came From "Beyond The Pale": Security Interests In Tort Claims, Harold R. Weinberg

Law Faculty Scholarly Articles

"[B]eyond the pale" is how the drafters of Article Nine of the Uniform Commercial Code regarded tort claims. They considered tort claims to be noncommercial assets inappropriate for inclusion as collateral within the scope of a commercial financing statute. Tort claims may not be out-of-bounds much longer. The Article Nine Study Committee of the Permanent Editorial Board for the Uniform Commercial Code recommends expansion of the Article's scope to encompass security interests in claims arising out of tort. This recommendation is significant. Tort causes of action comprise an ever-expanding universe of civil wrongs for which courts afford redress. The owners …

Legislative Process And Commercial Law: Lessons From The Copyright Act Of 1976 And The Uniform Commercial Code, Harold R. Weinberg, William J. Woodward Jr.

Law Faculty Scholarly Articles

Overlap and conflict are inevitable in any legal system in which a federal government and state governments both have authority to enact laws. In our federal system, the Constitution's Supremacy Clause identifies federal law as preeminent in case of conflict. When conflict develops and litigation is required to determine whether state or federal law controls the issue at hand, our system analyzes the problem using the term preemption as a basis for analysis.

This Article explores the federal legislative process that precedes judicial preemption decisions. By studying the legislative process for its sensitivity to preemption issues, possible ways to modify …

The Malformed Mouse Meets The Libr: Secured And Restitutionary Claims To Commingled Funds, Harold R. Weinberg

Law Faculty Scholarly Articles

The "malformed mouse" is section 9-306(4)(d) of the Uniform Commercial Code. It provides a formula that determines the extent to which an insolvent debtor's commingled bank account contains funds subject to a security interest. A special entitlement is necessary because it is impossible to physically distinguish this collateral after commingling. The label malformed mouse is appropriate if one agrees with critics who have questioned the mouse's statutory architecture and underlying rationale. The image of an elusive creature is also apt. The mouse continues to elude understanding, although it has been part of the Code for many years and the subject …

Modernizing Kentucky's Uniform Commercial Code, Harold R. Weinberg, Louise Everett Graham, Thomas J. Stipanowich

Law Faculty Scholarly Articles

In 1958 Kentucky became the third state to enact the Uniform Commercial Code promulgated by the American Law Institute and the National Conference of Commissioners on Uniform State Laws. The General Assembly stated that this legislation was intended to modernize, clarify and simplify the law of commercial transactions. Enactment of the Code also evidenced the legislature's intent to make Kentucky commercial law uniform with that of the other states. Subsequent General Assemblies further implemented these policies by enacting substantially all of the uniform amendments to the Code proposed by the ALI and NCCUSL through 1964.

Unfortunately, these enactments represent our …

Corporations And Corporate Agents: Liability On Commercial Paper Contracts And Attainment Of Holder Status, Harold R. Weinberg

Law Faculty Scholarly Articles

This article focuses on two classes of commercial paper issues. Section I considers the Uniform Commercial Code rules relevant to determining whether a corporation or its agents are bound by contracts made upon a negotiable instrument. Application of these rules continues to be an important and recurrent source of legal disputes. Section II considers the rights of corporations or their agents to obtain holder status prerequisite to enforcing commercial paper contracts. Problems relating to the attainment of this status can result from corporate engagement in joint-enterprise with artificial or natural persons and from the linkage of corporations through common ownership …

Pleading And Practice In Commercial Paper Cases: Burdens Of Proof, Harold R. Weinberg

Law Faculty Scholarly Articles

Money debts are frequently paid by checks and evidenced by notes subject to Article Three of the Uniform Commercial Code. Financial institutions and other creditors ordinarily take these instruments with the expectation that they will be paid on time without resort to litigation. This expectation fails when the debtor or some other obligor on the instrument claims that its signature was unauthorized or that there is a defense against payment. This Article analyzes the Uniform Commercial Code rules concerning burdens of proof that apply to these disputes and gives consideration to related procedural and evidentiary questions. It concludes with some …

Kentucky Law Survey: Commercial Law And Consumer Credit, Harold R. Weinberg

Law Faculty Scholarly Articles

This article is a survey of commercial law and consumer credit in the Commonwealth of Kentucky. The most significant development during the past survey year was the demise of the holder in due course doctrine and other related doctrines which insulated creditors financing consumer sales from consumer claims and defenses. As a result of this development, consumers will now be able to assert claims or defenses arising out of the sale financed against the financer under certain circumstances. Other developments also surveyed herein relate to the Uniform Commercial Code statutes of frauds and prejudgment creditors’ remedies.

Secured Party's Right To Sue Third Persons For Damage To Or Defects In Collateral, Harold R. Weinberg

Law Faculty Scholarly Articles

The proverb “there is many a slip ‘twixt the cup and the lip” might have been written with the secured creditor in mind. Many tragedies may befall him to defeat his expectations. He takes his security interest hoping for the best, but preparing for the worst—nonperformance of the obligation secured. If he does not carefully comply with the Article Nine provisions concerning the enforceability and perfection of a security interest, he may ultimately be unsecured. If his security interest is enforceable and perfected, it may turn out that some other party has priority to the collateral. Even if the secured …

Book Review Of James K. White & Robert S. Summers, Handbook Of The Law Under The Uniform Commercial Code (1972), Harold R. Weinberg

Law Faculty Scholarly Articles

This is a book review of James K. White & Robert S. Summers, Handbook of the Law Under the Uniform Commercial Code (1972).