UCC Protects Common Law Rights? Where?

[Siren]

I just did a google search for UCC 1-308 and was directed to www.law.cornell.edu/ucc/1/

In the process, I checked out 1-103 because I was looking for the mention of the common law being upheld in the UCC. The suijuris thread from 2004 relating to UCC 1-207 indicated that "we" should use UCC 1-103(6) which relates to the fact that the common law is not to be replaced by the UCC except where legislative statutes have deliberately and purposefully reversed the original common law (or words to that effect).

So now I am very concerned because the UCC as listed at the above website: www.law.cornell.edu/ucc/1/ does not even HAVE a section 6 under UCC 1-103! So I could find NO reference to the common law at all!

Here is all it says under UCC 1-103:

§ 1-103. Construction of [Uniform Commercial Code] to Promote its Purposes and Policies: Applicability of Supplemental Principles of Law.

(a) [The Uniform Commercial Code] must be liberally construed and applied to promote its underlying purposes and policies, which are: (1) to simplify, clarify, and modernize the law governing commercial transactions; (2) to permit the continued expansion of commercial practices through custom, usage, and agreement of the parties; and (3) to make uniform the law among the various jurisdictions.

(b) Unless displaced by the particular provisions of [the Uniform Commercial Code], the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, and other validating or invalidating cause supplement its provisions.

Although Section 1-308 does seem to "reserve our rights" there is no other reference to what rights (common law or other) we are reserving. Here is the wording under 1-308:

§ 1-308. Performance or Acceptance Under Reservation of Rights.

(a) A party that with explicit reservation of rights performs or promises performance or assents to performance in a manner demanded or offered by the other party does not thereby prejudice the rights reserved. Such words as "without prejudice," "under protest," or the like are sufficient.

(b) Subsection (a) does not apply to an accord and satisfaction.

WHERE is the protection of our common law rights?

-- Siren

[palani]

Custom and useage.

The 'without prejudice' is simply the remedy to remove your signature and anything you sign from the jurisdiction of the UCC. If you fail to reserve you rights your signature can mean anything that anyone reading it cares to interpret.

For example, in an engineering law class I took taught by a lawyer, he told us of a real estate transaction that took place. An older lady had a cabin near a river and had been negotiating for its' sale. She ended up sending a letter to the prospective buyer in which she discussed everthing that they had talked about, then told him she really didn't want to sell, signed it and sent it. The signing took it out of the statute of fraud and, even though she had indicated she did not want to sell she was forced to anyway.

Another case is the signature card for an account at a bank. Check the back of the card and it will tell you that by signing you agree to the rules of the bank, which include the rules of the U.S. Treasury (including IRS). Even the signature card must be signed using 'without prejudice' otherwise you are presumed to agree with any undisclosed terms or adhesion contracts.

[James]

Siren,
I believe what you are referring to is found in the “Anderson Uniform Commercial Code Text-Cases Commentary.” Pg.69

§ 1-103:6. Common law.

"The Code is complimentary to the Common Law, which remains in force, except where displaced by the code.”

“A statute should be construed in harmony with the Common Law, unless there is a clear legislative intent to abrogate the Common Law."

[FredGomez™]

So now I am very concerned because the UCC as listed at the above website: www.law.cornell.edu/ucc/1/ does not even HAVE a section 6 under UCC 1-103! So I could find NO reference to the common law at all!

Here is all it says under UCC 1-103:

§ 1-103. Construction of [Uniform Commercial Code] to Promote its Purposes and Policies: Applicability of Supplemental Principles of Law.

(a) [The Uniform Commercial Code] must be liberally construed and applied to promote its underlying purposes and policies, which are: (1) to simplify, clarify, and modernize the law governing commercial transactions; (2) to permit the continued expansion of commercial practices through custom, usage, and agreement of the parties; and (3) to make uniform the law among the various jurisdictions.
(b) Unless displaced by the particular provisions of [the Uniform Commercial Code], the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, and other validating or invalidating cause supplement its provisions.

Various Jurisdictions can be so construed as to include common law jurisdiction.


In God We Trust
Fred