(a) Unless the context otherwise requires, words or phrases defined in this section, or in the additional definitions contained in other articles of this title that apply to particular articles or parts thereof, have the meanings stated.
(b) Subject to definitions contained in other articles of this title that apply to particular articles or parts thereof:
"Action", in the sense of a judicial proceeding, includes recoupment, counterclaim,set-off, suit in equity, and any other proceeding in which rights are determined.
"Aggrieved party" means a party entitled to pursue a remedy.
"Agreement" means the bargain of the parties in fact, as found in their language orinferred from other circumstances, including course of performance, course of dealing, or usage of trade as provided in section 4-1-303. (Compare "contract".) (3.5) "Authenticate" means:
To sign; or
With the intent to sign a record, otherwise to execute or adopt an electronic symbol,sound, message, or process referring to, attached to, included in, or logically associated or linked with, that record.
"Bank" means a person engaged in the business of banking and includes a savingsbank, savings and loan association, credit union, and trust company.
"Bearer" means a person in control of a negotiable electronic document of title or aperson in possession of a negotiable instrument, negotiable tangible document of title, or certificated security that is payable to bearer or indorsed in blank.
"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.
"Branch" includes a separately incorporated foreign branch of a bank.
"Burden of establishing" a fact means the burden of persuading the trier of fact thatthe existence of the fact is more probable than its nonexistence.
"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 article 2 of this title may be a buyer in ordinary course of business. A person that acquires goods in a transfer in bulk or as security for or in total or partial satisfaction of a money debt is not a buyer in ordinary course of business.
"Conspicuous", with reference to a term, means so written, displayed, or presentedthat 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 heading in capital letters equal to or greater in size than the surrounding text, or incontrasting type, font, or color to the surrounding text of the same or lesser size; and
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 surrounding text of the same size by symbols or other marks that call attention to the language.
(10.5) "Consumer" means an individual who enters into a transaction primarily for personal, family, or household purposes.
"Contract" means the total legal obligation that results from the parties' agreementas determined by this title as supplemented by any other applicable laws. (Compare "agreement".)
"Creditor" includes a general creditor, a secured creditor, a lien creditor, and anyrepresentative 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.
"Defendant" includes a person in the position of defendant in a counterclaim orthird-party claim.
"Delivery", with respect to an electronic document of title, means voluntary transferof control and with respect to an instrument, a tangible document of title, or chattel paper, means voluntary transfer of possession.
"Document of title" means a record (i) that in the regular course of business orfinancing 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 which are either identified or are fungible portions of an identified mass. The term includes a bill of lading, transport document, dock warrant, dock receipt, warehouse receipt, and order for delivery of goods. An electronic document of title means a document of title evidenced by a record consisting of information stored in an electronic medium. A tangible document of title means a document of title evidenced by a record consisting of information that is inscribed on a tangible medium.
"Fault" means a wrongful act, omission, breach, or default.
"Fungible goods" means either:
Goods of which any unit, by nature or usage of trade, is the equivalent of any otherlike unit; or
Goods that by agreement are treated as equivalent.
"Genuine" means free of forgery or counterfeiting.
"Good faith", except as provided in article 5 of this title, means honesty in fact andthe observance of reasonable commercial standards of fair dealing.
"Holder" means:
The person in possession of a negotiable instrument that is payable either to beareror to an identified person that is the person in possession;
The person in possession of a negotiable tangible document of title if the goods aredeliverable either to bearer or to the order of the person in possession; or
The person in control of a negotiable electronic document of title.
"Insolvency proceeding" includes an assignment for the benefit of creditors or otherproceeding intended to liquidate or rehabilitate the estate of the person involved.
An "insolvent" person is a person that:
Has generally ceased to pay debts in the ordinary course of business other than as aresult of a bona fide dispute as to the debts;
Is unable to pay debts as they become due; or
Is insolvent within the meaning of federal bankruptcy law.
"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.
"Organization" means a person other than an individual.
"Party", as distinct from a "third party", means a person that has engaged in a transaction or made an agreement subject to this title.
"Person" means an individual, corporation, business trust, estate, trust, partnership,limited liability company, association, joint venture, government, government subdivision, agency, or instrumentality, or any other legal or commercial entity.
"Present value" means the amount as of a date certain of one or more sums payablein 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.
"Presumption" or "presumed" means that the trier of fact must find the existence ofthe fact presumed unless and until evidence is introduced that would support a finding of its nonexistence.
"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.
"Purchaser" means a person that takes by purchase.
"Record" means information that is inscribed on a tangible medium or that is storedin an electronic or other medium and is retrievable in perceivable form.
"Remedy" means any remedial right to which an aggrieved party is entitled, with orwithout resort to a tribunal.
"Representative" means any 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.
"Right" includes remedy.
"Security interest" means an interest in personal property or fixtures that securespayment or performance of an obligation. The term also 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 article 9 of this title. The special property interest of a buyer of goods on identification of those goods to a contract for sale under section 4-2-401 is not a "security interest", but a buyer may also acquire a "security interest" by complying with article 9 of this title. Except as otherwise provided in section 4-2-505, the right of a seller or lessor of goods under article 2 or 2.5 of this title 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 article 9 of this title. The retention or reservation of title by a seller of goods notwithstanding shipment or delivery to the buyer (section 4-2-401) is limited in effect to a reservation of a "security interest". Whether a transaction in the form of a lease creates a "security interest" is determined pursuant to section 4-1-203.
"Send", in connection with a writing, record, or notice, means 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 is none, to any address reasonable under the circumstances; or
In any other way cause to be received any record or notice within the time it wouldhave arrived if properly sent.
"Signed" includes any symbol executed or adopted with present intention to adoptor accept a writing.
"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.
"Surety" includes a guarantor or other secondary obligor.
"Term" means a portion of an agreement that relates to a particular matter.
"Unauthorized signature" means a signature made without actual, implied, or apparent authority. The term includes a forgery.
"Warehouse receipt" means a document of title issued by a person engaged in thebusiness of storing goods for hire.
"Writing" includes printing, typewriting, or any other intentional reduction to tangible form. "Written" has a corresponding meaning.
Source: L. 2006: Entire article R&RE, p. 458, § 1, effective September 1. L. 2007: (b)(5), (b)(15), (b)(20)(A), and (b)(20)(C) amended, p. 374, § 26, effective August 3.
Editor's note: This section is similar to former § 4-1-201 as it existed prior to 2006.
Cross references: For offenses relating to security interest, see §§ 18-5-504, 18-5-505, and 18-5-511.