2012 Commercial Law Developments

VI. U.C.C. -- Sales and Personal Property Leasing

A. Scope

1. General

2. Software and Other Intangibles

3. Leasing

  • Wells Fargo Bank Northwest v. RPK Capital XVI, LLC, 360 S.W.3d 691 (Tex. Ct. App. 2012) -- A post-bankruptcy sale of aircraft as part of orderly liquidation of business by aircraft lessor was not a sale in ordinary course of business and therefore the buyer did not acquire (under UCC § 2A-310(d)) rights to goods that were an accession to the aircraft.  UCC § 9-10__(b)(__).

B. Contract Formation and Modification; Statute of Frauds;"Battle of the Forms"; Contract Interpretation; Title Issues

1. General

2. Battle of the Forms

  • Leica Geosystems, Inc. v. L.W.S. Leasing, Inc., 2012 WL 1957288 (D. Colo. 2012) -- A seller's standard terms that the seller's written price quotations referenced but did not include, describe, or provide a link to were not part of the agreement formed initially.  The seller's invoice sent the following day and containing a link to the standard terms operated as a confirmation.  The choice-of-law clause became part of the agreement because it is an immaterial additional term but the disclaimers of the implied warranty of fitness, incidental damages, and consequential damages are material changes that did not become part of the agreement.  UCC § 2-207.

C. Warranties and Products Liability

1. Warranties

  • Wells Fargo Equipment Finance, Inc. v. Titan Leasing, Inc., 2012 WL 6184896 (N.D. Ill. 2012) -- An equipment lessor that, in connection with its grant to lender of a security interest in an equipment lease, warranted that the lessee had accepted the goods and had not defaulted on its payment obligations was not liable for breach of those warranties.  Even though the lessee did not receive the goods until after the warranty was given and never used the goods because they were damaged in transit, the lessee had in fact accepted the goods because the lease agreement gave the lessee a right to inspect before shipment, expressly provided that shipment constituted acceptance, and the goods had in fact been shipped before the warranty was given.  There was no payment default because no payment was yet due under the lease when the warranty was given.

2. Limitation of Liability

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3. "Economic Loss" Doctrine

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D. Performance, Breach and Damages

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E. Personal Property Leasing

  • In re Qimonda Richmond, LLC,  476 B.R. 431 (Bankr. D. Del. 2012) -- An indemnification clause in a participation agreement relating to equipment lease which required the lessee to indemnify certain parties for costs and expenses "which may be imposed on, incurred by or asserted against any Indemnitee" did not cover claims for the lost residual value of equipment after the debtor filed bankruptcy and rejected the lease because the clause covers only claims asserted against the indemnitees by third parties, not claims they assert against the lessee for their lost investment opportunity.

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