(a) Subject to Subsection (f) of this section, a person has "notice" of a fact if the person:
(1) has actual knowledge of it;
(2) has received a notice or notification of it; or
(3) from all the facts and circumstances known to the person at the time in question, has reason to know that it exists.
(b) "Knowledge" means actual knowledge. "Knows" has a corresponding meaning.
(c) "Discover", "learn" or words of similar import refer to knowledge rather than to reason to know.
(d) A person "notifies" or "gives" a notice or notification to another person by taking such steps as may be reasonably required to inform the other person in ordinary course, whether or not the other person actually comes to know of it.
(e) Subject to Subsection (f) of this section, a person "receives" a notice or notification when:
(1) it comes to that person's attention; or
(2) it is duly delivered in a form reasonable under the circumstances at the place of business through which the contract was made or at another location held out by that person as the place for receipt of such communications.
(f) Notice, knowledge or a notice or notification received by an organization is effective for a particular transaction from the time it is brought to the attention of the individual conducting that transaction and, in any event, from the time it would have been brought to the individual's attention if the organization had exercised due diligence. An organization exercises due diligence if it maintains reasonable routines for communicating significant information to the person conducting the transaction and there is reasonable compliance with the routines. Due diligence does not require an individual acting for the organization to communicate information unless the communication is part of the individual's regular duties or the individual has reason to know of the transaction and that the transaction would be materially affected by the information.
History: Laws 2005, ch. 144, § 10.
ANNOTATIONSOFFICIAL COMMENTS
UCC Official Comments by ALI & the NCCUSL. Reproduced with permission of the PEB for the UCC. All rights reserved.
Source. — Former Section 1-201 [55-1-201 NMSA 1978].
Changes from former law. — In order to make it clear that all definitions in the Uniform Commercial Code (not just those appearing in Article 1, as stated in former Section 1-201 [55-1-201 NMSA 1978], but also those appearing in other Articles) do not apply if the context otherwise requires, a new Subsection (a) to that effect has been added, and the definitions now appear in Subsection (b). The reference in Subsection (a) to the "context" is intended to refer to the context in which the defined term is used in the Uniform Commercial Code. In other words, the definition applies whenever the defined term is used unless the context in which the defined term is used in the statute indicates that the term was not used in its defined sense. Consider, for example, Sections 3-103(a)(9) [55-3-103(a)(9) NMSA 1978] (defining "promise," in relevant part, as "a written undertaking to pay money signed by the person undertaking to pay") and 3-303(a)(1) [55-3-303(a)(1) NMSA 1978] (indicating that an instrument is issued or transferred for value if "the instrument is issued or transferred for a promise of performance, to the extent that the promise has been performed"). It is clear from the statutory context of the use of the word "promise" in Section 3-303(a)(1) that the term was not used in the sense of its definition in Section 3-103(a)(9). Thus, the Section 3-103(a)(9) definition should not be used to give meaning to the word "promise" in Section 3-303(a).
Some definitions in former Section 1-201 [55-1-201 NMSA 1978] have been reformulated as substantive provisions and have been moved to other sections. See Sections 1-202 [55-1-202 NMSA 1978] (explicating concepts of notice and knowledge formerly addressed in Sections 1-201(25)-(27)[55-1-201(25)-(27) NMSA 1978]), 1-204 [55-1-204 NMSA 1978](determining when a person gives value for rights, replacing the definition of "value" in former Section 1-201(44) [55-1-201(44) NMSA 1978]), and 1-206 [55-1-206 NMSA 1978] (addressing the meaning of presumptions, replacing the definitions of "presumption" and "presumed" in former Section 1-201(31)[55-1-201(31) NMSA 1978]). Similarly, the portion of the definition of "security interest" in former Section 1-201(37) [55-1-201(37) NMSA 1978] which explained the difference between a security interest and a lease has been relocated to Section 1-203 [55-1-203 NMSA 1978].
Two definitions in former Section 1-201 [55-1-201 NMSA 1978] have been deleted. The definition of "honor" in former Section 1-201(21) [55-1-201(21) NMSA 1978] has been moved to Section 2-103(1)(b) [55-2-103(1)(b) NMSA 1978], inasmuch as the definition only applies to the use of the word in Article 2. The definition of "telegram" in former Section 1-201(41) [55-1-201(41) NMSA 1978] has been deleted because that word no longer appears in the definition of "conspicuous."
Other than minor stylistic changes and renumbering, the remaining definitions in this section are as in former Article 1 except as noted below.
1. "Action." Unchanged from former Section 1-201 [55-1-201 NMSA 1978], which was derived from similar definitions in Section 191, Uniform Negotiable Instruments Law; Section 76, Uniform Sales Act; Section 58, Uniform Warehouse Receipts Act; Section 53, Uniform Bills of Lading Act.
2. "Aggrieved party." Unchanged from former Section 1-201.
3. "Agreement." Derived from former Section 1-201. As used in the Uniform Commercial Code the word is intended to include full recognition of usage of trade, course of dealing, course of performance and the surrounding circumstances as effective parts thereof, and of any agreement permitted under the provisions of the Uniform Commercial Code to displace a stated rule of law. Whether an agreement has legal consequences is determined by applicable provisions of the Uniform Commercial Code and, to the extent provided in Section 1-103 [55-1-103 NMSA 1978], by the law of contracts.
4. "Bank." Derived from Section 4A-104 [55-4A-104 NMSA 1978].
5. "Bearer." Unchanged from former Section 1-201, which was derived from Section 191, Uniform Negotiable Instruments Law.
6. "Bill of Lading." Derived from former Section 1-201. The reference to, and definition of, an "airbill" has been deleted as no longer necessary.
7. "Branch." Unchanged from former Section 1-201.
8. "Burden of establishing a fact." Unchanged from former Section 1-201.
9. "Buyer in ordinary course of business." Except for minor stylistic changes, identical to former Section 1-201 (as amended in conjunction with the 1999 revisions to Article 9). The major significance of the phrase lies in Section 2-403 [55-2-403 NMSA 1978] and in the Article on Secured Transactions (Article 9).
The first sentence of paragraph (9) makes clear that a buyer from a pawnbroker cannot be a buyer in ordinary course of business. The second sentence explains what it means to buy "in the ordinary course." The penultimate sentence prevents a buyer that does not have the right to possession as against the seller from being a buyer in ordinary course of business. Concerning when a buyer obtains possessory rights, see Sections 2-502 and 2-716 [55-2-502, 55-2-716 NMSA 1978]. However, the penultimate sentence is not intended to affect a buyer's status as a buyer in ordinary course of business in cases (such as a "drop shipment") involving delivery by the seller to a person buying from the buyer or a donee from the buyer. The requirement relates to whether as against the seller the buyer or one taking through the buyer has possessory rights.
10. "Conspicuous." Derived from former Section 1-201(10) [55-1-201(10) NMSA 1978]. This definition states the general standard that to be conspicuous a term ought to be noticed by a reasonable person. Whether a term is conspicuous is an issue for the court. Subparagraphs (A) and (B) set out several methods for making a term conspicuous. Requiring that a term be conspicuous blends a notice function (the term ought to be noticed) and a planning function (giving guidance to the party relying on the term regarding how that result can be achieved). Although these paragraphs indicate some of the methods for making a term attention-calling, the test is whether attention can reasonably be expected to be called to it. The statutory language should not be construed to permit a result that is inconsistent with that test.
11. "Consumer." Derived from Section 9-102(a)(25) [55-9-102 (a)(25) NMSA 1978].
12. "Contract." Except for minor stylistic changes, identical to former Section 1-201.
13. "Creditor." Unchanged from former Section 1-201.
14. "Defendant." Except for minor stylistic changes, identical to former Section 1-201, which was derived from Section 76, Uniform Sales Act.
15. "Delivery." Derived from former Section 1-201. The reference to certificated securities has been deleted in light of the more specific treatment of the matter in Section 8-301 [55-8-301 NMSA 1978].
16. "Document of title." Unchanged from former Section 1-201, which was derived from Section 76, Uniform Sales Act. By making it explicit that the obligation or designation of a third party as "bailee" is essential to a document of title, this definition clearly rejects any such result as obtained in Hixson v. Ward, 254 Ill.App. 505 (1929), which treated a conditional sales contract as a document of title. Also the definition is left open so that new types of documents may be included. It is unforeseeable what documents may one day serve the essential purpose now filled by warehouse receipts and bills of lading. Truck transport has already opened up problems which do not fit the patterns of practice resting upon the assumption that a draft can move through banking channels faster than the goods themselves can reach their destination. There lie ahead air transport and such probabilities as teletype transmission of what may some day be regarded commercially as "Documents of Title." The definition is stated in terms of the function of the documents with the intention that any document which gains commercial recognition as accomplishing the desired result shall be included within its scope. Fungible goods are adequately identified within the language of the definition by identification of the mass of which they are a part.
Dock warrants were within the Sales Act definition of document of title apparently for the purpose of recognizing a valid tender by means of such paper. In current commercial practice a dock warrant or receipt is a kind of interim certificate issued by steamship companies upon delivery of the goods at the dock, entitling a designated person to have issued to him at the company's office a bill of lading. The receipt itself is invariably nonnegotiable in form although it may indicate that a negotiable bill is to be forthcoming. Such a document is not within the general compass of the definition, although trade usage may in some cases entitle such paper to be treated as a document of title. If the dock receipt actually represents a storage obligation undertaken by the shipping company, then it is a warehouse receipt within this section regardless of the name given to the instrument.
The goods must be "described," but the description may be by marks or labels and may be qualified in such a way as to disclaim personal knowledge of the issuer regarding contents or condition. However, baggage and parcel checks and similar "tokens" of storage which identify stored goods only as those received in exchange for the token are not covered by this Article.
The definition is broad enough to include an airway bill.
17. "Fault." Derived from former Section 1-201. "Default" has been added to the list of events constituting fault.
18. "Fungible goods." Derived from former Section 1-201. References to securities have been deleted because Article 8 no longer uses the term "fungible" to describe securities. Accordingly, this provision now defines the concept only in the context of goods.
19. "Genuine." Unchanged from former Section 1-201.
20. "Good faith." Former Section 1-201(19) [55-1-201(19) NMSA 1978] defined "good faith" simply as honesty in fact; the definition contained no element of commercial reasonableness. Initially, that definition applied throughout the Code with only one exception. Former Section 2-103(1)(b) [55-2-103(1)(b) NMSA 1978] provided that "in that Article, "'good faith' in the case of a merchant means honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade." This alternative definition was limited in applicability, though, because it applied only to transactions within the scope of Article 2 and it applied only to merchants.
Over time, however, amendments to the Uniform Commercial Code brought the Article 2 merchant concept of good faith (subjective honesty and objective commercial reasonableness) into other Articles. First, Article 2A explicitly incorporated the Article 2 standard. See Section 2A-103(7) [55-2A-103(7) NMSA 1978]. Then, other Articles broadened the applicability of that standard by adopting it for all parties rather than just for merchants. See, e.g., Sections 3-103(a)(4), 4A-105(a)(6), 7-102(a)(6), 8-102(a)(10), and 9-102(a)(43) [55-3-103(a)55-4A-105(a)55-7-102(a)55-8-102(a)55-9-102(a) NMSA 1978]. Finally, Articles 2 and 2A were amended so as to apply the standard to non-merchants as well as merchants. See Sections 2-103(1)(j), 2A-103(1)(m) [55-2-10355 NMSA 1978]. All of these definitions are comprised of two elements honesty in fact and the observance of reasonable commercial standards of fair dealing. Only revised Article 5 defines "good faith" solely in terms of subjective honesty, and only Article 6 (in the few states that have not chosen to delete the Article) is without a definition of good faith. (It should be noted that, while revised Article 6 did not define good faith, Comment 2 to revised Section 6-102 [55-6-102 NMSA 1978] states that "this Article adopts the definition of 'good faith' in Article 1 in all cases, even when the buyer is a merchant.")
Thus, the definition of "good faith" in this section merely confirms what has been the case for a number of years as Articles of the UCC have been amended or revised the obligation of "good faith," applicable in each Article, is to be interpreted in the context of all Articles except for Article 5 as including both the subjective element of honesty in fact and the objective element of the observance of reasonable commercial standards of fair dealing. As a result, both the subjective and objective elements are part of the standard of "good faith," whether that obligation is specifically referenced in another Article of the Code (other than Article 5) or is provided by this Article.
Of course, as noted in the statutory text, the definition of "good faith" in this section does not apply when the narrower definition of "good faith" in revised Article 5 is applicable.
As noted above, the definition of "good faith" in this section requires not only honesty in fact but also "observance of reasonable commercial standards of fair dealing." Although "fair dealing" is a broad term that must be defined in context, it is clear that it is concerned with the fairness of conduct rather than the care with which an act is performed. This is an entirely different concept than whether a party exercised ordinary care in conducting a transaction. Both concepts are to be determined in the light of reasonable commercial standards, but those standards in each case are directed to different aspects of commercial conduct. See e.g., Sections 3-103(a)(9) and 4-104(c) [55-3-103(a)55-4-104(c) NMSA 1978] and Comment 4 to Section 3-103 [55-3-103 NMSA 1978].
21. "Holder." Derived from former Section 1-201. The definition has been reorganized for clarity.
22. "Insolvency proceedings." Unchanged from former Section 1-201.
23. "Insolvent." Derived from former Section 1-201. The three tests of insolvency "generally ceased to pay debts in the ordinary course of business other than as a result of a bona fide dispute as to them," "unable to pay debts as they become due," and "insolvent within the meaning of the federal bankruptcy law" are expressly set up as alternative tests and must be approached from a commercial standpoint.
24. "Money." Substantively identical to former Section 1-201. The test is that of sanction of government, whether by authorization before issue or adoption afterward, which recognizes the circulating medium as a part of the official currency of that government. The narrow view that money is limited to legal tender is rejected.
25. "Organization." The former definition of this word has been replaced with the standard definition used in acts prepared by the National Conference of Commissioners on Uniform State Laws.
26. "Party." Substantively identical to former Section 1-201. Mention of a party includes, of course, a person acting through an agent. However, where an agent comes into opposition or contrast to the principal, particular account is taken of that situation.
27. "Person." The former definition of this word has been replaced with the standard definition used in acts prepared by the National Conference of Commissioners on Uniform State Laws.
28. "Present value." This definition was formerly contained within the definition of "security interest" in former Section 1-201(37) [55-1-201(37) NMSA 1978].
29. "Purchase." Derived from former Section 1-201. The form of definition has been changed from "includes" to "means."
30. "Purchaser." Unchanged from former Section 1-201.
31. "Record." Derived from Section 9-102(a)(69) [55-9-102(a)(69) NMSA 1978].
32. "Remedy." Unchanged from former Section 1-201. The purpose is to make it clear that both remedy and right (as defined) include those remedial rights of "self help" which are among the most important bodies of rights under the Uniform Commercial Code, remedial rights being those to which an aggrieved party may resort on its own.
33. "Representative." Derived from former Section 1-201. Reorganized, and form changed from "includes" to "means."
34. "Right." Except for minor stylistic changes, identical to former Section 1-201.
35. "Security Interest." The definition is the first paragraph of the definition of "security interest" in former Section 1-201, with minor stylistic changes. The remaining portion of that definition has been moved to Section 1-203 [55-1-203 NMSA 1978]. Note that, because of the scope of Article 9, the term includes the interest of certain outright buyers of certain kinds of property.
36. "Send." Derived from former Section 1-201 [55-1-201 NMSA 1978]. Compare "notifies".
37. "Signed." Derived from former Section 1-201. Former Section 1-201 referred to "intention to authenticate"; because other articles now use the term "authenticate," the language has been changed to "intention to adopt or accept." The latter formulation is derived from the definition of "authenticate" in Section 9-102(a)(7) [55-9-102(a)(7) NMSA 1978]. This provision refers only to writings, because the term "signed," as used in some articles, refers only to writings. This provision also makes it clear that, as the term "signed" is used in the Uniform Commercial Code, a complete signature is not necessary. The symbol may be printed, stamped or written; it may be by initials or by thumbprint. It may be on any part of the document and in appropriate cases may be found in a billhead or letterhead. No catalog of possible situations can be complete and the court must use common sense and commercial experience in passing upon these matters. The question always is whether the symbol was executed or adopted by the party with present intention to adopt or accept the writing.
38. "State." This is the standard definition of the term used in acts prepared by the National Conference of Commissioners on Uniform State Laws.
39. "Surety." This definition makes it clear that "surety" includes all secondary obligors, not just those whose obligation refers to the person obligated as a surety. As to the nature of secondary obligations generally, see Restatement (Third), Suretyship and Guaranty Section 1 (1996).
40. "Term." Unchanged from former Section 1-201.
41. "Unauthorized signature." Unchanged from former Section 1-201.
42. "Warehouse receipt." Unchanged from former Section 1-201, which was derived from Section 76(1), Uniform Sales Act; Section 1, Uniform Warehouse Receipts Act. Receipts issued by a field warehouse are included, provided the warehouseman and the depositor of the goods are different persons.
43. "Written" or "writing." Unchanged from former Section 1-201.
"Bill of lading". Section 1-201.
"Contract". Section 1-201.
"Genuine". Section 1-201.
Repeals and reenactments. — Laws 2005, ch. 144, § 10, effective January 1, 2006, repealed former 55-1-202 NMSA 1978, relating to prima facie evidence by third party, as enacted by Laws 1961, ch. 96, § 1-202, and enacted a new 55-1-202 NMSA 1978 relating to "notice" and "knowledge". For previous law relating to "notice" and "knowledge", see former Subsections 25 to 27 of 55-1-201 NMSA 1978 on the 2004 NMSA 1978 on NMOneSource.com.
Compiler's notes. — For current law governing prima facie evidence, see 55-1-307 NMSA 1978.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 15A Am. Jur. 2d Commercial Code § 33.
32A C.J.S. Evidence §§ 819, 820, 967.