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1.4.2 Official Comments to the UCC

Although not part of the law,74 the official comments to each section of the UCC are vital to using the Code. Not only are they rich with buyer protection explanations, but they are “indispensable to a knowledge of the Code.”75 The preface to the Code states that the comments are “one of the indispensable features” of the UCC.

The comments in the 1967 version of the Code were written by the National Conference of Commissioners on Uniform State Laws (NCCUSL) (now the Uniform Law Commission) and by the American Law Institute, which together sponsored the effort that drafted the Code and approved it for adoption by the states. Subsequent comments were added by the Permanent Editorial Board for the Uniform Commercial Code whenever amendments were made to the text. The comments are intended to “explain the purpose and intent of the sections and the changes in the prior law that were affected by the Code.”76 The goals of the comments are “to promote uniformity, to aid in viewing the Act as an integrated whole, and to safeguard against misconstruction.”77

Courts have articulated several reasons for relying on the official comments. First, the comments reflect the drafters’ interpretation of the text.78 This is especially true when the section is adopted verbatim from the official text. Second, the guidance of the comments is a principal way to promote the Code’s policy of uniformity.79 Third, because the comments were before most legislatures when they adopted the Code, it may be assumed that it was the legislatures’ intent to adopt the comments’ interpretations of the Code.80 This last factor is not universally applicable, however, because the comments were not before some state legislatures when the Code was adopted, and some of the present comments were not even in existence at the time the pertinent sections were enacted.81 Courts give weight to the comments even in states that enacted the UCC without formally adopting the comments.82

Regardless of their persuasiveness, the comments cannot be used to interpret the Code contrary to its plain language.83 In a few instances, the comments may expand or restrict the meaning of the text. One apparent reason for this inconsistency was political. When opponents of a proposed section prevailed, the drafters would revise the draft accordingly, but sometimes would preserve the meaning of the original version in the comments.84 In Frericks v. General Motors Corp.85 and Clemco Industries v. Johnson,86 injured consumers benefited when the courts rejected the view of comment 5 to section 2-607 that a consumer who uses the product but is not the buyer must give the seller early notice of the injury. Those courts instead relied on the “plain language” of section 2-607(3), which requires only “buyers” to notify the seller, thus allowing the injured consumers to proceed even though they did not give notice. In these and similar cases, the equities probably had more influence on the courts’ decisions to reject the comments than did the principles of legislative intent, uniformity, and drafters’ interpretations.87

Footnotes

  • 74 {62} But see Gen. Elec. Capital Corp. v. Union Planters Bank, 409 F.3d 1049 (8th Cir. 2005) (Missouri would recognize official comments as law); Nation Enterprises, Inc. v. Enersyst, Inc., 749 F. Supp. 1506 (N.D. Ill. 1990) (“‘Texas law’ includes the Official Comments.”—this statement has been criticized as being too broad, see Editor’s Note, 13 U.C.C. Rep. Serv. 2d at 1118).

  • 75 {63} Skilton, Some Comments on the Comments to the Uniform Commercial Code, 1966 Wis. L. Rev. 597, 631. See also Weathersby v. Gore, 556 F.2d 1247 (5th Cir. 1977) (Miss. law); In re Yale Express Sys., Inc., 370 F.2d 433 (2d Cir. 1966) (N.Y. law) (comments are “powerful dicta”); In re Kelaidis, 276 B.R. 266 (B.A.P. 10th Cir. 2002) (Utah uses comments as guides even though it has not officially adopted them); In re Mayo, 112 B.R. 607 (Bankr. D. Vt. 1990) (comments used as aid to interpretation although “not binding”); Corfan Banco Asuncion Paraguay v. Ocean Bank, 715 So. 2d 967 (Fla. Dist. Ct. App. 1998) (comments persuasive although not binding); Premier Capital, L.L.C. v. KMZ, Inc., 984 N.E.2d 286, 290 n.6 (Mass. 2013) (comments do not have the force of law, but are nonetheless “the most useful of several aids to interpretation and construction” of the U.C.C.); Kelly v. Olinger Travel Homes, Inc., 117 P.3d 282, 288 n.5 (Or. Ct. App. 2005) (official comments are instructive even though they lack force of law); Diamond Surface, Inc. v. State Cement Plant Comm’n, 583 N.W.2d 155 (S.D. 1998) (looking to comments for guidance even though state did not adopt them); Cardenuto v. Dominion Bank of N. Va., 14 U.C.C. Rep. Serv. 2d 811 (Va. Cir. Ct. 1991) (comments are “powerful dicta”); Hong Yop Ha v. Dominion Bank of N. Va., 14 U.C.C. Rep. Serv. 2d 806 (Va. Cir. Ct. 1991) (comments are “powerful dicta which should not be needlessly ignored”); Rahall v. Tweel, 411 S.E.2d 461 (W. Va. 1991) (state comments, taken verbatim from original U.C.C. comments, are “authoritative”); B & W Glass v. Weather Shield Mfg., 829 P.2d 809 (Wyo. 1992) (“The official comments . . . while not controlling . . . are persuasive.”). But cf. Pedro v. Armour Swift-Eckrich, 118 F. Supp. 2d 1155 (D. Kan. 2000) (Kansas comments to U.C.C. not persuasive).

  • 76 {64} Preface to the Fourteenth Edition, Uniform Commercial Code (1995).

  • 77 {65} General Comment to the Fourteenth Edition, Uniform Commercial Code (1995).

  • 78 {66} See, e.g., In re SGE Mortg. Funding Corp., 278 B.R. 653, 659 n.4 (Bankr. M.D. Ga. 2001); Warren’s Kiddie Shoppe, Inc. v. Casual Slacks, Inc., 171 S.E.2d 643 (Ga. Ct. App. 1969); Whewell v. Dobson, 227 N.W.2d 115 (Iowa 1975) (comments “should be given due consideration as they express the intention of the drafters”); Guess v. Lorenz, 612 S.W.2d 831 (Mo. Ct. App. 1981) (comments have less weight than ordinary legislative history but are useful indicators of the drafters’ reasoning); Wilkerson Motor Co. v. Johnson, 580 P.2d 505 (Okla. 1978); Saber v. Dan Angelone Chevrolet, Inc., 811 A.2d 644 (R.I. 2002); J.R. Simplot Co. v. Sales King Int’l, Inc., 17 P.3d 1100 (Utah 2000).

  • 79 {67} See U.C.C. § 1-103(a)(3) [formerly U.C.C. § 1-102(2)]. See also Weathersby v. Gore, 556 F.2d 1247 (5th Cir. 1977) (Miss. law); In re Copeland, 531 F.2d 1195 (3d Cir. 1976) (Del. law); In re Yale Express Sys., Inc., 370 F.2d 433 (2d Cir. 1966) (the comments “are powerful dicta for the Code is ‘well on its way to becoming a truly national law of commerce’”); In re Anthony, 835 P.2d 811 (N.M. 1992); Burchett v. Allied Concord Fin. Corp., 396 P.2d 186 (N.M. 1964) (comments “provide an excellent guideline” as: “The purpose of the comments is to explain the provisions of the code itself, in an effort to promote uniformity of interpretation.”).

  • 80 {68} See, e.g., United States v. Branch Banking & Trust Co., 11 U.C.C. Rep. Serv. 2d 351 (E.D.N.C. 1990) (comments made legislative intent “quite clear”); Pastor v. Nat’l Republic Bank, 371 N.E.2d 1127 (Ill. App. Ct. 1977) (examining comment “to discern the legislature’s intent”), aff’d, 390 N.E.2d 894 (Ill. 1979); Coleman v. Brotherhood State Bank, 592 P.2d 103, 112 (Kan. Ct. App. 1979) (“We presume that when the legislature adopted sections of the official UCC without change it intended to give the same construction that was intended by the drafters.”); Groppel Co. v. United States Gypsum Co., 616 S.W.2d 49 (Mo. Ct. App. 1981) (comments are persuasive aid in determining legislative intent).

  • 81 {69} See Skilton, Some Comments on the Comments to the Uniform Commercial Code, 1966 Wis. L. Rev. 597, 604. See also N. Ind. Pub. Serv. Co. v. Carbon Cty. Coal Co., 799 F.2d 265 (7th Cir. 1986) (Ind. law) (Indiana has not adopted official comments, and it has its own comments that do not always agree with the U.C.C. drafters’ comments); Williams v. Fulmer, 695 S.W.2d 411 (Ky. 1985) (official commentary to section 2-318 not incorporated in or referred to in the Kentucky version of section 2-318).

  • 82 {70} In re Kelaidis, 276 B.R. 266 (B.A.P. 10th Cir. 2002) (Utah uses comments as guides even though it has not officially adopted them); In re SGE Mortg. Funding Corp., 278 B.R. 653, 659 n.4 (Bankr. M.D. Ga. 2001) (comments are given due consideration even though not adopted in Georgia); Holifield v. BancorpSouth, Inc., 891 So. 2d 241 (Miss. Ct. App. 2004); Diamond Surface, Inc. v. State Cement Plant Comm’n, 583 N.W.2d 155 (S.D. 1998) (looking to comments for guidance even though state did not adopt them).

  • 83 {71} In re Bel Air Carpets, Inc., 452 F.2d 1210 (9th Cir. 1971) (Cal. law); Simmons v. Clemco Indus., 368 So. 2d 509 (Ala. 1979); Wright v. Bank of Cal., 81 Cal. Rptr. 11 (Cal. Ct. App. 1969); Frericks v. Gen. Motors Corp., 363 A.2d 460 (Md. 1976); Bank of N.Y. v. Fleet Bank, 671 N.Y.S.2d 945 (N.Y. Sup. Ct. 1998); Zinni v. One Twp. Line Corp., 36 Pa. D. & C.2d 297 (C.P. 1965). See also Solitron Devices, Inc. v. Veeco Instruments, Inc., 492 So. 2d 1357 (Fla. Dist. Ct. App. 1986).

  • 84 {72} See Llewellyn, Why a Commercial Code?, 22 Tenn. L. Rev. 779, 782 (1953).

  • 85 {73} 363 A.2d 460 (Md. 1976).

  • 86 {74} 368 So. 2d 509 (Ala. 1979).

  • 87 {75} In re Bel Air Carpets, Inc., 452 F.2d 1210 (9th Cir. 1971) (rejecting comment 2 to section 2-702 to allow creditor’s claim against a bankrupt who declared insolvency within five weeks of receiving over $10,000 in goods entirely on credit); Wright v. Bank of Cal., 81 Cal. Rptr. 11 (Cal. Ct. App. 1969) (rejecting comment 4 to section 3-405 in favor of the “plain language of the statute” to hold bank liable to its customer for paying on unendorsed check); Zinni v. One Twp. Line Corp., 36 Pa. D. & C.2d 297 (C.P. 1965) (rejecting comment 2 to section 6-102 to give creditor of restaurant the protection of U.C.C. Article 6 on Bulk Sales).