2017 ORS 71.2010¹
General definitions

(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 definitions contained in other chapters of the Uniform Commercial Code that apply to particular chapters or parts thereof:

(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.

(b) “Aggrieved party” means a party entitled to pursue a remedy.

(c) “Agreement,” as distinguished from “contract,” means the bargain of the parties in fact as found in their language or inferred from other circumstances including course of performance, course of dealing or usage of trade as provided in ORS 71.3030 (Course of performance, course of dealing and usage of trade).

(d) “Bank” means a person engaged in the business of banking and includes a savings bank, savings and loan association, credit union and trust company.

(e) “Bearer” means a person in control of a negotiable electronic document of title or a person in possession of a negotiable instrument, negotiable tangible document of title or certificated security that is payable to bearer or indorsed in blank.

(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.

(g) “Branch” includes a separately incorporated foreign branch of a bank.

(h) “Burden of establishing” a fact means the burden of persuading the trier of fact that the existence of the fact is more probable than its nonexistence.

(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.

(j) “Conspicuous,” with reference to a term, means so written, displayed or presented that a reasonable person against which it is to operate ought to have noticed it. Whether a term is “conspicuous” or not is a decision 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.

(L) “Contract,” as distinguished from “agreement,” means the total legal obligation that results from the parties’ agreement as determined by the Uniform Commercial Code as supplemented by any other applicable laws.

(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.

(n) “Defendant” includes a person in the position of defendant in a counterclaim, cross claim or third party claim.

(o) “Delivery,” with respect to an electronic document of title means voluntary transfer of control and with respect to an instrument, a tangible document of title, or chattel paper means voluntary transfer of possession.

(p)(A) “Document of title” 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 the record is entitled to receive, control, hold and dispose of the record and the goods the record covers; 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.

(q) “Fault” means default, breach or wrongful act or omission.

(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.

(s) “Genuine” means free of forgery or counterfeiting.

(t) “Good faith,” except as otherwise provided in ORS chapter 75, means honesty in fact and the observance of reasonable commercial standards of fair dealing.

(u) “Holder” means:

(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.

(v) “Insolvency proceeding” includes an assignment for the benefit of creditors or other proceeding intended to liquidate or rehabilitate the estate of the person involved.

(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.

(x) “Money” means a medium of exchange currently authorized or adopted by a domestic or foreign government. The term includes a monetary unit of account established by an intergovernmental organization or by agreement between two or more countries.

(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.

(cc) “Purchase” 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.

(dd) “Purchaser” means a person 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.

(ff) “Remedy” means any remedial right to which an aggrieved party is entitled with or without resort to a tribunal.

(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.

(ii)(A) “Security interest” means an interest in personal property or fixtures which secures payment or performance of an obligation. “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 (Passing of title), but a buyer may also acquire a “security interest” by complying with ORS chapter 79.

(C) Except as otherwise provided in ORS 72.5050 (Seller’s shipment under reservation), 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 under ORS 72.4010 (Passing of title) 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 (Lease distinguished from security interest).

(jj) “Send” in connection with 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; 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.

(kk) “Signed” includes using any symbol executed or adopted with present intention to adopt or accept a writing.

(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.

(nn) “Term” means a portion of an agreement that relates to a particular matter.

(oo) “Unauthorized signature” means a signature made without actual, implied or apparent authority. The term includes a forgery.

(pp) “Warehouse receipt” means a document of title issued by a person engaged in the business of storing goods for hire.

(qq) “Writing” includes printing, typewriting or any other intentional reduction to tangible form. “Written” has a corresponding meaning. [1961 c.726 §71.2010 (General definitions); 1973 c.504 §2; 1985 c.676 §71.2010 (General definitions); 1989 c.676 §81; 1993 c.545 §1; 1995 c.79 §20; 1997 c.834 §1; 2001 c.445 §131; 2009 c.181 §8]

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

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)

1 Legislative Counsel Committee, CHAPTER 71—General Provisions for Uniform Commercial Code, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors071.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 71, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano071.­html (2017) (last ac­cessed Mar. 30, 2018).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.