Senate Bill sb0252c2
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Florida Senate - 2007 CS for CS for SB 252
By the Committees on Judiciary; Commerce; and Senators
Aronberg and Lynn
590-1997-07
1 A bill to be entitled
2 An act relating to the Uniform Commercial Code;
3 repealing s. 15.091, F.S., relating to
4 processing fees for filings of financial
5 statements and other written documents under
6 the Uniform Commerical Code; amending s.
7 671.101, F.S.; providing scope of chapter and a
8 short title; amending s. 671.102, F.S.;
9 authorizing certain timeframes to be fixed by
10 agreement; amending s. 671.106, F.S.; making
11 editorial changes; amending s. 671.107, F.S.;
12 providing for the discharge of a claim or right
13 under certain circumstances; amending s.
14 671.201, F.S.; providing, revising, and
15 deleting definitions; amending ss. 671.202 and
16 671.203, F.S.; making editorial changes;
17 amending s. 671.204, F.S.; revising criteria
18 determining when an action is taken within a
19 reasonable time and seasonably; amending s.
20 671.205, F.S.; defining "course of
21 performance"; revising the definition of
22 "course of dealing"; providing that course of
23 performance and course of dealing may be used
24 for certain purposes; revising uses for express
25 terms of an agreement; specifying when course
26 of performance, course of dealing, or usage of
27 trade prevails; providing that course of
28 performance is relevant to show a waiver or
29 modification in certain circumstances;
30 repealing s. 671.206, F.S., relating to statute
31 of frauds for kinds of personal property not
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1 otherwise covered; amending s. 671.208, F.S.;
2 making editorial changes; creating s. 671.209,
3 F.S.; providing definitions; specifying when
4 notice, knowledge, or notification becomes
5 effective with the exercise of due diligence;
6 creating s. 671.21, F.S.; providing that
7 whenever the code creates certain presumptions,
8 the trier of fact must find the existence of
9 the fact presumed unless evidence is introduced
10 which supports a finding of its nonexistence;
11 creating s. 671.211, F.S.; providing in what
12 instances a person gives value for rights;
13 creating s. 671.212, F.S.; providing that the
14 code modifies, limits, and supersedes certain
15 provisions of the federal Electronic Signatures
16 in Global and National Commerce Act; creating
17 s. 671.213, F.S.; authorizing the subordination
18 of certain obligations; authorizing the
19 registry to use the fees collected to fund its
20 operations; amending s. 679.525, F.S.; deleting
21 the filing fees for electronically filing a
22 financing statement or an amendment thereto;
23 amending ss. 559.9232, 563.022, 668.50,
24 670.106, 670.204, 675.102, 680.518, 680.519,
25 680.527, and 680.528, F.S.; conforming
26 cross-references; amending s. 713.901, F.S.;
27 specifying fees under the Florida Uniform
28 Federal Lien Registration Act previously
29 provided through cross-reference; deleting a
30 cross-reference to conform to changes made by
31 the act; providing an effective date.
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1 Be It Enacted by the Legislature of the State of Florida:
2
3 Section 1. Section 15.091, Florida Statutes, is
4 repealed.
5 Section 2. Section 671.101, Florida Statutes, is
6 amended to read:
7 671.101 Short title; scope of chapter.--
8 (1) Chapters 670-680 may be cited as the "Uniform
9 Commercial Code."
10 (2) This chapter applies to a transaction to the
11 extent that it is governed by another chapter of this code and
12 may be cited as the "Uniform Commercial Code--General
13 Provisions."
14 Section 3. Section 671.102, Florida Statutes, is
15 amended to read:
16 671.102 Purposes; rules of construction; variation by
17 agreement.--
18 (1) This code shall be liberally construed and applied
19 to promote its underlying purposes and policies, which.
20 (2) Underlying purposes and policies of this code are:
21 (a) To simplify, clarify, and modernize the law
22 governing commercial transactions.;
23 (b) To permit the continued expansion of commercial
24 practices through custom, usage, and agreement of the
25 parties.;
26 (c) To make uniform the law among the various
27 jurisdictions.
28 (2)(a)(3) Except as otherwise provided in this code,
29 the effect of provisions of this code may be varied by
30 agreement., except as otherwise provided in this code and
31 except that
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1 (b) The obligations of good faith, diligence,
2 reasonableness, and care prescribed by this code may not be
3 disclaimed by agreement, but the parties may by agreement
4 determine the standards by which the performance of such
5 obligations is to be measured if such standards are not
6 manifestly unreasonable. Whenever this code requires an action
7 to be taken within a reasonable time, a time that is not
8 manifestly unreasonable may be fixed by agreement.
9 (c)(4) The presence in certain provisions of this code
10 of the words "unless otherwise agreed" or words of similar
11 import does not imply that the effect of other provisions may
12 not be varied by agreement under this subsection (3).
13 (3)(5) In this code, unless the context otherwise
14 requires:
15 (a) Words in the singular number include the plural,
16 and words in the plural include the singular.;
17 (b) Gender-specific language includes the other gender
18 and neuter, and when the sense so indicates Words of either
19 the neuter gender also may refer to the other any gender.
20 Section 4. Subsection (1) of section 671.106, Florida
21 Statutes, is amended to read:
22 671.106 Remedies to be liberally administered.--
23 (1) The remedies provided by this code must shall be
24 liberally administered to the end that the aggrieved party may
25 be put in as good a position as if the other party had fully
26 performed, but neither consequential or special nor penal
27 damages may be had except as specifically provided in this
28 code or by other rule of law.
29 Section 5. Section 671.107, Florida Statutes, is
30 amended to read:
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1 671.107 Waiver or renunciation of claim or right after
2 breach.--A Any claim or right arising out of an alleged breach
3 can be discharged in whole or in part without consideration by
4 agreement of a written waiver or renunciation signed and
5 delivered by the aggrieved party in an authenticated record.
6 Section 6. Section 671.201, Florida Statutes, is
7 amended to read:
8 671.201 General definitions.--Unless the context
9 otherwise requires, words or phrases defined in this section,
10 or in the additional definitions contained in other chapters
11 of this code which apply to particular chapters or parts
12 thereof, have the meanings stated. Subject to additional
13 definitions contained in other the subsequent chapters of this
14 code which apply which are applicable to particular specific
15 chapters or parts thereof, the term and unless the context
16 otherwise requires, in this code:
17 (1) "Action," in the sense of a judicial proceeding,
18 includes recoupment, counterclaim, setoff, suit in equity, and
19 any other proceedings in which rights are determined.
20 (2) "Aggrieved party" means a party entitled to pursue
21 resort to a remedy.
22 (3) "Agreement," as distinguished from "contract,"
23 means the bargain of the parties in fact, as found in their
24 language or inferred by implication from other circumstances,
25 including course of dealing, or usage of trade, or course of
26 performance as provided in this code (ss. 671.205 and
27 672.208). Whether an agreement has legal consequences is
28 determined by the provisions of this code, if applicable;
29 otherwise by the law of contracts (s. 671.103). (Compare
30 "contract.")
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1 (4) "Bank" means a any person engaged in the business
2 of banking and includes a savings bank, a savings and loan
3 association, a credit union, and a trust company.
4 (5) "Bearer" means a the person in possession of a
5 negotiable an instrument, document of title, or certificated
6 security that is payable to bearer or indorsed in blank.
7 (6) "Bill of lading" means a document evidencing the
8 receipt of goods for shipment issued by a person engaged in
9 the business of transporting or forwarding goods, and includes
10 an airbill. "Airbill" means a document serving for air
11 transportation as a bill of lading does for marine or rail
12 transportation, and includes an air consignment note or air
13 waybill.
14 (7) "Branch" includes a separately incorporated
15 foreign branch of a bank.
16 (8) "Burden of establishing" a fact means the burden
17 of persuading the triers of fact that the existence of the
18 fact is more probable than its nonexistence.
19 (9) "Buyer in ordinary course of business" means a
20 person who, in ordinary course, buys goods in good faith,
21 without knowledge that the sale violates the rights of another
22 person in the goods, and in the ordinary course from a person,
23 other than a pawnbroker, in the business of selling goods of
24 that kind. A person buys goods in the ordinary course if the
25 sale to the person comports with the usual or customary
26 practices in the kind of business in which the seller is
27 engaged or with the seller's own usual or customary practices.
28 A person who sells oil, gas, or other minerals at the wellhead
29 or minehead is a person in the business of selling goods of
30 that kind. A buyer in the ordinary course of business may buy
31 for cash, by exchange of other property, or on secured or
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1 unsecured credit and may acquire goods or documents of title
2 under a preexisting contract for sale. Only a buyer who takes
3 possession of the goods or has a right to recover the goods
4 from the seller under chapter 672 may be a buyer in the
5 ordinary course of business. "Buyer in ordinary course of
6 business" does not include a person who acquires goods in a
7 transfer in bulk or as security for or in total or partial
8 satisfaction of a money debt is not a buyer in the ordinary
9 course of business.
10 (10) A term or clause is "Conspicuous," with reference
11 to a term, means when it is so written, displayed, or
12 presented that a reasonable person against whom it is to
13 operate ought to have noticed it. Whether a term is
14 "conspicuous" is a decision for the court. Conspicuous terms
15 include the following:
16 (a) A printed heading in capitals in a size equal to
17 or larger than that of the surrounding text or in a (as:
18 NONNEGOTIABLE BILL OF LADING) is conspicuous. Language in the
19 body of a form is conspicuous if it is in larger or other
20 contrasting type, font, or color in contrast to the
21 surrounding text of the same or lesser size.
22 (b) Language in the body of a record or display in
23 type larger than that of the surrounding text; in a type,
24 font, or color in contrast to the surrounding text of the same
25 size; or set off from surrounding text of the same size by
26 symbols or other marks that call attention to the language.
27 But in a telegram any stated term is conspicuous. Whether a
28 term or clause is conspicuous or not is for decision by the
29 court.
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1 (11) "Consumer" means an individual who enters into a
2 transaction primarily for personal, family, or household
3 purposes.
4 (12)(11) "Contract," as distinguished from
5 "agreement," means the total legal obligation that which
6 results from the parties' agreement as determined affected by
7 this code and as supplemented by any other applicable laws
8 rules of law. (Compare "agreement.")
9 (13)(12) "Creditor" includes a general creditor, a
10 secured creditor, a lien creditor, and any representative of
11 creditors, including an assignee for the benefit of creditors,
12 a trustee in bankruptcy, a receiver in equity, and an executor
13 or administrator of an insolvent debtor's or assignor's
14 estate.
15 (14)(13) "Defendant" includes a person in the position
16 of defendant in a cross-action or counterclaim, cross-claim,
17 or third-party claim.
18 (15)(14) "Delivery," with respect to an instrument
19 instruments, document documents of title, or chattel paper, or
20 certificated securities means voluntary transfer of
21 possession.
22 (16)(15) "Document of title" includes bill of lading,
23 dock warrant, dock receipt, warehouse receipt or order for the
24 delivery of goods, and also any other document that which in
25 the regular course of business or financing is treated as
26 adequately evidencing that the person in possession of it is
27 entitled to receive, hold, and dispose of the document and the
28 goods it covers. To be a document of title, a document must
29 purport to be issued by or addressed to a bailee and purport
30 to cover goods in the bailee's possession which are either
31 identified or are fungible portions of an identified mass.
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1 (17)(16) "Fault" means a default, breach, or wrongful
2 act or, omission or breach.
3 (18)(17) "Fungible goods" with respect to goods or
4 securities means:
5 (a) Goods or securities of which any unit is, by
6 nature or usage of trade, is the equivalent of any other like
7 unit; or.
8 (b) Goods which are not fungible shall be deemed
9 fungible for the purposes of this code to the extent that, by
10 under a particular agreement, or document unlike units are
11 treated as equivalents.
12 (19)(18) "Genuine" means free of forgery or
13 counterfeiting.
14 (20)(19) "Good faith," except as otherwise provided in
15 this code, means honesty in fact and in the observance of
16 reasonable commercial standards of fair dealing conduct or
17 transaction concerned.
18 (21)(20) "Holder," with respect to a negotiable
19 instrument, means:
20 (a) The person in possession of a negotiable if the
21 instrument that is payable either to bearer or, in the case of
22 an instrument payable to an identified person that is, if the
23 identified person is in possession; or. "Holder," with respect
24 to a document of title, means
25 (b) The person in possession of a document of title if
26 the goods are deliverable either to bearer or to the order of
27 the person in possession.
28 (21) To "honor" is to pay or to accept and pay, or
29 where a credit so engages to purchase or discount a draft
30 complying with the terms of the credit.
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1 (22) "Insolvency proceeding proceedings" includes an
2 any assignment for the benefit of creditors or other
3 proceeding proceedings intended to liquidate or rehabilitate
4 the estate of the person involved.
5 (23) A person is "Insolvent" means:
6 (a) Having who either has ceased to pay his or her
7 debts in the ordinary course of business other than as a
8 result of a bona fide dispute;
9 (b) Being unable to or cannot pay his or her debts as
10 they become due; or
11 (c) Being is insolvent within the meaning of the
12 Federal Bankruptcy Law.
13 (24) "Money" means a medium of exchange currently
14 authorized or adopted by a domestic or foreign government. The
15 term and includes a monetary unit of account established by an
16 intergovernmental organization or by agreement between two or
17 more countries nations.
18 (25) A person has "notice" of a fact when
19 (a) He or she has actual knowledge of it; or
20 (b) He or she has received a notice or notification of
21 it; or
22 (c) From all the facts and circumstances known to the
23 person at the time in question he or she has reason to know
24 that it exists.
25
26 A person "knows" or has "knowledge" of a fact when he or she
27 has actual knowledge of it. "Discover" or "learn" or a word or
28 phrase of similar import refers to knowledge rather than to
29 reason to know. The time and circumstances under which a
30 notice or notification may cease to be effective are not
31 determined by this code.
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1 (26) A person "notifies" or "gives" a notice or
2 notification to another by taking such steps as may be
3 reasonably required to inform the other in ordinary course
4 whether or not such other actually comes to know of it. A
5 person "receives" a notice or notification when
6 (a) It comes to his or her attention; or
7 (b) It is duly delivered at the place of business
8 through which the contract was made or at any other place held
9 out by the person as the place for receipt of such
10 communications.
11 (27) Notice, knowledge or a notice or notification
12 received by an organization is effective for a particular
13 transaction from the time when it is brought to the attention
14 of the individual conducting that transaction, and in any
15 event from the time when it would have been brought to his or
16 her attention if the organization had exercised due diligence.
17 An organization exercises due diligence if it maintains
18 reasonable routines for communicating significant information
19 to the person conducting the transaction and there is
20 reasonable compliance with the routines. Due diligence does
21 not require an individual acting for the organization to
22 communicate information unless such communication is part of
23 his or her regular duties or unless the individual has reason
24 to know of the transaction and that the transaction would be
25 materially affected by the information.
26 (25)(28) "Organization" means a person other than an
27 individual includes a corporation, government or governmental
28 subdivision or agency, business trust, estate, trust,
29 partnership or association, two or more persons having a joint
30 or common interest, or any other legal or commercial entity.
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1 (26)(29) "Party," as distinguished distinct from
2 "third party," means a person who has engaged in a transaction
3 or made an agreement subject to within this code.
4 (27)(30) "Person" means includes an individual;
5 corporation; business trust; estate; trust; partnership;
6 limited liability company; association; joint venture;
7 government; governmental subdivision, agency, or
8 instrumentality; public corporation; or any other legal or
9 commercial entity or an organization (see s. 671.102).
10 (28) "Present value" means the amount as of a date
11 certain of one or more sums payable in the future, discounted
12 to the date certain by use of either an interest rate
13 specified by the parties if that rate is not manifestly
14 unreasonable at the time the transaction is entered into or,
15 if an interest rate is not so specified, a commercially
16 reasonable rate that takes into account the facts and
17 circumstances at the time the transaction is entered into.
18 (31) "Presumption" or "presumed" means that the trier
19 of fact must find the existence of the fact presumed unless
20 and until evidence is introduced which would support a finding
21 of its nonexistence.
22 (29)(32) "Purchase" means includes taking by sale,
23 lease, discount, negotiation, mortgage, pledge, lien, security
24 interest, issue or reissue, gift, or any other voluntary
25 transaction creating an interest in property.
26 (30)(33) "Purchaser" means a person who takes by
27 purchase.
28 (31) "Record" means information that is inscribed on a
29 tangible medium or that is stored in an electronic or other
30 medium and is retrievable in perceivable form.
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1 (32)(34) "Remedy" means any remedial right to which an
2 aggrieved party is entitled with or without resort to a
3 tribunal.
4 (33)(35) "Representative" means a person empowered to
5 act for another, including includes an agent, an officer of a
6 corporation or association, and a trustee, executor, or
7 administrator of an estate, or any other person empowered to
8 act for another.
9 (34)(36) "Right Rights" includes "remedy" remedies.
10 (35)(37) "Security interest" means an interest in
11 personal property or fixtures which secures payment or
12 performance of an obligation. "Security interest" The term
13 also includes any interest of a consignor and a buyer of
14 accounts, chattel paper, a payment intangible, or a promissory
15 note in a transaction that which is subject to chapter 679.
16 "Security interest" does not include the special property
17 interest of a buyer of goods on identification of those goods
18 to a contract for sale under s. 672.401 is not a security
19 interest, but a buyer may also acquire a security interest by
20 complying with chapter 679. Except as otherwise provided in s.
21 672.505, the right of a seller or lessor of goods under
22 chapter 672 or chapter 680 to retain or acquire possession of
23 the goods is not a security interest, but a seller or lessor
24 may also acquire a security interest by complying with chapter
25 679. The retention or reservation of title by a seller of
26 goods, notwithstanding shipment or delivery to the buyer under
27 (s. 672.401), is limited in effect to a reservation of a
28 security interest. Whether a transaction in the form of a
29 lease creates a lease or security interest is determined by
30 the facts of each case; however:
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1 (a) A transaction in the form of a lease creates a
2 security interest if the consideration that the lessee is to
3 pay the lessor for the right to possession and use of the
4 goods is an obligation for the term of the lease not subject
5 to termination by the lessee, and:;
6 1. The original term of the lease is equal to or
7 greater than the remaining economic life of the goods;
8 2. The lessee is bound to renew the lease for the
9 remaining economic life of the goods or is bound to become the
10 owner of the goods;
11 3. The lessee has an option to renew the lease for the
12 remaining economic life of the goods for no additional
13 consideration or nominal additional consideration upon
14 compliance with the lease agreement; or
15 4. The lessee has an option to become the owner of the
16 goods for no additional consideration or nominal additional
17 consideration upon compliance with the lease agreement.
18 (b) A transaction does not create a security interest
19 merely because it provides that:
20 1. The present value of the consideration the lessee
21 is obligated to pay the lessor for the right to possession and
22 use of the goods is substantially equal to or is greater than
23 the fair market value of the goods at the time the lease is
24 entered into;
25 2. The lessee assumes the risk of loss of the goods or
26 agrees to pay taxes; insurance; filing, recording, or
27 registration fees; or service or maintenance costs with
28 respect to the goods;
29 3. The lessee agrees to pay, with respect to the
30 goods, taxes; insurance; filing, recording, or registration
31 fees; or service or maintenance costs;
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1 4.3. The lessee has an option to renew the lease or to
2 become the owner of the goods;
3 5.4. The lessee has an option to renew the lease for a
4 fixed rent that is equal to or greater than the reasonably
5 predictable fair market rent for the use of the goods for the
6 term of the renewal at the time the option is to be performed;
7 or
8 6.5. The lessee has an option to become the owner of
9 the goods for a fixed price that is equal to or greater than
10 the reasonably predictable fair market value of the goods at
11 the time the option is to be performed.
12 (c) For purposes of this subsection:
13 1. Additional consideration is not nominal if it is
14 less than the lessee's reasonably predictable cost of
15 performing under the lease agreement if the option is not
16 exercised. Additional consideration is not nominal if:,
17 1. When the option to renew the lease is granted to
18 the lessee, the rent is stated to be the fair market rent for
19 the use of the goods for the term of the renewal determined at
20 the time the option is to be performed; or if,
21 2. When the option to become the owner of the goods is
22 granted to the lessee, the price is stated to be the fair
23 market value of the goods determined at the time the option is
24 to be performed. Additional consideration is nominal if it is
25 less than the lessee's reasonably predictable cost of
26 performing under the lease agreement if the option is not
27 exercised.
28 (d)2. The "Reasonably predictable" and "remaining
29 economic life of the goods" and "reasonably predictable" fair
30 market rent, fair market value, or cost of performing under
31 the lease agreement must are to be determined with reference
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1 to the facts and circumstances at the time the transaction is
2 entered into.
3 3. "Present value" means the amount as of a date
4 certain of one or more sums payable in the future, discounted
5 to the date certain. The discount is determined by the
6 interest rate specified by the parties if the rate is not
7 manifestly unreasonable at the time the transaction is entered
8 into; otherwise, the discount is determined by a commercially
9 reasonable rate that takes into account the facts and
10 circumstances of each case at the time the transaction was
11 entered into.
12 (36)(38) "Send," in connection with a any writing,
13 record, or notice, means:
14 (a) To deposit in the mail or deliver for transmission
15 by any other usual means of communication with postage or cost
16 of transmission provided for and properly addressed and, in
17 the case of an instrument, to an address specified thereon or
18 otherwise agreed, or, if there be none, to any address
19 reasonable under the circumstances; or.
20 (b) In any other way to cause to be received The
21 receipt of any record writing or notice within the time at
22 which it would have arrived if properly sent has the effect of
23 a proper sending.
24 (37)(39) "Signed" means bearing includes any symbol
25 executed or adopted by a party with present intention to adopt
26 or accept authenticate a writing.
27 (38) "State" means a state of the United States, the
28 District of Columbia, Puerto Rico, the United States Virgin
29 Islands, or any territory or insular possession subject to the
30 jurisdiction of the United States.
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1 (39)(40) "Surety" includes a guarantor or other
2 secondary obligor.
3 (41) "Telegram" includes a message transmitted by
4 radio, teletype, cable, any mechanical method of transmission,
5 or the like.
6 (40)(42) "Term" means a that portion of an agreement
7 which relates to a particular matter.
8 (41)(43) "Unauthorized" signature" means a signature
9 one made without actual, implied, or apparent authority. The
10 term and includes a forgery.
11 (44) "Value." Except as otherwise provided with
12 respect to negotiable instruments and bank collections (ss.
13 673.3031, 674.2101, and 674.2111), a person gives value for
14 rights if he or she acquires them:
15 (a) In return for a binding commitment to extend
16 credit or for the extension of immediately available credit
17 whether or not drawn upon and whether or not a charge-back is
18 provided for in the event of difficulties in collection;
19 (b) As security for or in total or partial
20 satisfaction of a preexisting claim;
21 (c) By accepting delivery pursuant to a preexisting
22 contract for purchase; or
23 (d) Generally, in return for any consideration
24 sufficient to support a simple contract.
25 (42)(45) "Warehouse receipt" means a written receipt
26 or an electronic notification of receipt issued by a person
27 engaged in the business of storing goods for hire.
28 (43)(46) "Written" or "Writing" includes printing,
29 typewriting, or any other intentional reduction to tangible
30 form. "Written" has a corresponding meaning.
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1 Section 7. Section 671.202, Florida Statutes, is
2 amended to read:
3 671.202 Prima facie evidence by third-party
4 documents.--A document in due form purporting to be a bill of
5 lading, policy or certificate of insurance, official weigher's
6 or inspector's certificate, consular invoice, or any other
7 document authorized or required by the contract to be issued
8 by a third party is shall be prima facie evidence of its own
9 authenticity and genuineness and of the facts stated in the
10 document by the third party.
11 Section 8. Section 671.203, Florida Statutes, is
12 amended to read:
13 671.203 Obligation of good faith.--Every contract or
14 duty within this code imposes an obligation of good faith in
15 its performance and or enforcement.
16 Section 9. Section 671.204, Florida Statutes, is
17 amended to read:
18 671.204 Actions taken within Time; reasonable time;
19 "seasonably."--
20 (1) Whether a time for taking an action required by
21 Whenever this code is requires any action to be taken within a
22 reasonable time, any time which is not manifestly unreasonable
23 may be fixed by agreement.
24 (2) What is a reasonable time for taking any action
25 depends on the nature, purpose, and circumstances of the such
26 action.
27 (2)(3) An action is taken "seasonably" if when it is
28 taken at or within the time agreed or, if no time is agreed,
29 at or within a reasonable time.
30 Section 10. Section 671.205, Florida Statutes, is
31 amended to read:
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1 671.205 Course of performance; course of dealing; and
2 usage of trade.--
3 (1) A "course of performance" is a sequence of conduct
4 between the parties to a particular transaction that exists
5 if:
6 (a) The agreement of the parties with respect to the
7 transaction involves repeated occasions for performance by a
8 party; and
9 (b) The other party, with knowledge of the nature of
10 the performance and opportunity for objection to it, accepts
11 the performance or acquiesces in it without objection.
12 (2)(1) A "course of dealing" is a sequence of previous
13 conduct concerning previous transactions between the parties
14 to a particular transaction which is fairly to be regarded as
15 establishing a common basis of understanding for interpreting
16 their expressions and other conduct.
17 (3)(2) A "usage of trade" is any practice or method of
18 dealing having such regularity of observance in a place,
19 vocation, or trade as to justify an expectation that it will
20 be observed with respect to the transaction in question. The
21 existence and scope of such a usage are to be proved as facts.
22 If it is established that such a usage is embodied in a
23 written trade code or similar record, writing the
24 interpretation of the record writing is a question of law for
25 the court.
26 (4)(3) A course of performance or a course of dealing
27 between the parties or and any usage of trade in the vocation
28 or trade in which they are engaged or of which they are or
29 should be aware is relevant in ascertaining the give
30 particular meaning of the parties' to and supplement or
31 qualify terms of an agreement, may give particular meaning to
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1 specific terms of the agreement, and may supplement or qualify
2 the terms of the agreement. A usage of trade applicable in the
3 place in which part of the performance under the agreement is
4 to occur may be so utilized as to that part of the
5 performance.
6 (5)(4) Except as otherwise provided in subsection (6),
7 the express terms of an agreement and any an applicable course
8 of performance, course of dealing, or usage of trade must
9 shall be construed whenever wherever reasonable as consistent
10 with each other. If; but when such a construction is
11 unreasonable:
12 (a) Express terms prevail over control both course of
13 performance, course of dealing, and usage of trade;
14 (b) Course of performance prevails over course of
15 dealing and usage of trade; and
16 (c) Course of dealing prevails over controls usage of
17 trade.
18 (6) A course of performance is relevant to show a
19 waiver or modification of any term inconsistent with the
20 course of performance.
21 (5) An applicable usage of trade in the place where
22 any part of performance is to occur shall be used in
23 interpreting the agreement as to that part of the performance.
24 (7)(6) Evidence of a relevant usage of trade offered
25 by one party is not admissible unless that party and until he
26 or she has given the other party such notice that as the court
27 finds sufficient to prevent unfair surprise to the other party
28 latter.
29 Section 11. Section 671.206, Florida Statutes, is
30 repealed.
31
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1 Section 12. Section 671.208, Florida Statutes, is
2 amended to read:
3 671.208 Option to accelerate at will.--A term
4 providing that one party or the party's successor in interest
5 may accelerate payment or performance or require collateral or
6 additional collateral "at will" or "when she or he deems
7 herself or himself insecure" or in words of similar import
8 must shall be construed to mean that she or he has shall have
9 power to do so only if she or he in good faith believes that
10 the prospect of payment or performance is impaired. The burden
11 of establishing lack of good faith is on the party against
12 whom the power has been exercised.
13 Section 13. Section 671.209, Florida Statutes, is
14 created to read:
15 671.209 Notice; knowledge.--
16 (1) Subject to subsection (6), a person has "notice"
17 of a fact if the person:
18 (a) Has actual knowledge of it;
19 (b) Has received a notice or notification of it; or
20 (c) From all the facts and circumstances known to the
21 person at the time in question, has reason to know that it
22 exists.
23 (2) "Knowledge" means actual knowledge. "Knows" has a
24 corresponding meaning.
25 (3) "Discover," "learn," or words of similar import
26 refer to knowledge rather than to reason to know.
27 (4) A person "notifies" or "gives a notice or
28 notification to" another person by taking such steps as may be
29 reasonably required to inform the other person in ordinary
30 course, regardless of whether the other person actually comes
31 to know of it.
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1 (5) Subject to subsection (6), a person "receives" a
2 notice or notification when:
3 (a) It comes to that person's attention; or
4 (b) It is duly delivered in a form reasonable under
5 the circumstances at the place of business through which the
6 contract was made or at another location held out by that
7 person as the place for receipt of such communications.
8 (6) Notice, knowledge, or a notice or notification
9 received by an organization is effective for a particular
10 transaction from the time it is brought to the attention of
11 the person conducting that transaction and, in any event, from
12 the time it would have been brought to the person's attention
13 if the organization had exercised due diligence. An
14 organization exercises due diligence if it maintains
15 reasonable routines for communicating significant information
16 to the person conducting the transaction and there is
17 reasonable compliance with the routines. Due diligence does
18 not require an individual acting for the organization to
19 communicate information unless the communication is part of
20 the individual's regular duties or the individual has reason
21 to know of the transaction and that the transaction would be
22 materially affected by the information.
23 Section 14. Section 671.21, Florida Statutes, is
24 created to read:
25 671.21 Presumptions.--Whenever this code creates a
26 "presumption" with respect to a fact or provides that a fact
27 is "presumed," the trier of fact must find the existence of
28 the fact presumed unless evidence is introduced which supports
29 a finding of its nonexistence.
30 Section 15. Section 671.211, Florida Statutes, is
31 created to read:
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1 671.211 Value.--Except as otherwise provided with
2 respect to negotiable instruments and bank collections as
3 provided in ss. 673.3031, 674.2101, and 674.2111, a person
4 gives value for rights if the person acquires them:
5 (1) In return for a binding commitment to extend
6 credit or for the extension of immediately available credit
7 whether or not drawn upon and whether or not a charge-back is
8 provided for in the event of difficulties in collection;
9 (2) As security for, or in total or partial
10 satisfaction of, a preexisting claim;
11 (3) By accepting delivery under a preexisting contract
12 for purchase; or
13 (4) In return for any consideration sufficient to
14 support a simple contract.
15 Section 16. Section 671.212, Florida Statutes, is
16 created to read:
17 671.212 Relation to Electronic Signatures in Global
18 and National Commerce Act.--This code modifies, limits, and
19 supersedes the federal Electronic Signatures in Global and
20 National Commerce Act, 15 U.S.C. ss. 7001 et seq., except that
21 nothing in this code modifies, limits, or supersedes 15 U.S.C.
22 s. 7001(c) or authorizes electronic delivery of any of the
23 notices described in 15 U.S.C. s. 7003(b).
24 Section 17. Section 671.213, Florida Statutes, is
25 created to read:
26 671.213 Subordinated obligations.--An obligation may
27 be issued as subordinated to performance of another obligation
28 of the person obligated, or a creditor may subordinate its
29 right to performance of an obligation by agreement with either
30 the person obligated or another creditor of the person
31 obligated. Subordination does not create a security interest
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1 as against either the common debtor or a subordinated
2 creditor.
3 Section 18. Subsection (2) of section 559.9232,
4 Florida Statutes, is amended to read:
5 559.9232 Definitions; exclusion of rental-purchase
6 agreements from certain regulations.--
7 (2) A rental-purchase agreement that complies with
8 this act shall not be construed to be, nor be governed by, any
9 of the following:
10 (a) A lease or agreement that which constitutes a
11 credit sale as defined in 12 C.F.R. s. 226.2(a)(16) and s.
12 1602(g) of the federal Truth in Lending Act, 15 U.S.C. ss.
13 1601 et seq.;
14 (b) A lease that which constitutes a "consumer lease"
15 as defined in 12 C.F.R. s. 213.2(a)(6);
16 (c) Any lease for agricultural, business, or
17 commercial purposes;
18 (d) Any lease made to an organization;
19 (e) A lease or agreement that which constitutes a
20 "retail installment contract" or "retail installment
21 transaction" as those terms are defined in s. 520.31; or
22 (f) A security interest as defined in s. 671.201(35)
23 s. 671.201(37).
24 Section 19. Paragraph (g) of subsection (2) of section
25 563.022, Florida Statutes, is amended to read:
26 563.022 Relations between beer distributors and
27 manufacturers.--
28 (2) DEFINITIONS.--In construing this section, unless
29 the context otherwise requires, the word, phrase, or term:
30
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1 (g) "Good faith" means honesty in fact in the conduct
2 or transaction concerned as defined and interpreted under s.
3 671.201(20) s. 671.201(19).
4 Section 20. Paragraph (b) of subsection (3) and
5 paragraph (d) of subsection (16) of section 668.50, Florida
6 Statutes, are amended to read:
7 668.50 Uniform Electronic Transaction Act.--
8 (3) SCOPE.--
9 (b) This section does not apply to a transaction to
10 the extent the transaction is governed by:
11 1. A provision of law governing the creation and
12 execution of wills, codicils, or testamentary trusts;
13 2. The Uniform Commercial Code other than s. ss.
14 671.107 and 671.206 and chapters 672 and 680;
15 3. The Uniform Computer Information Transactions Act;
16 or
17 4. Rules relating to judicial procedure.
18 (16) TRANSFERABLE RECORDS.--
19 (d) Except as otherwise agreed, a person having
20 control of a transferable record is the holder, as defined in
21 s. 671.201(21) s. 671.201(20), of the transferable record and
22 has the same rights and defenses as a holder of an equivalent
23 record or writing under the Uniform Commercial Code,
24 including, if the applicable statutory requirements under s.
25 673.3021, s. 677.501, or s. 679.308 are satisfied, the rights
26 and defenses of a holder in due course, a holder to which a
27 negotiable document of title has been duly negotiated, or a
28 purchaser, respectively. Delivery, possession, and indorsement
29 are not required to obtain or exercise any of the rights under
30 this paragraph.
31
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1 Section 21. Subsection (1) of section 670.106, Florida
2 Statutes, is amended to read:
3 670.106 Time payment order is received.--
4 (1) The time of receipt of a payment order or
5 communication canceling or amending a payment order is
6 determined by the rules applicable to receipt of a notice
7 stated in s. 671.209 s. 671.201(27). A receiving bank may fix
8 a cut-off time or times on a funds-transfer business day for
9 the receipt and processing of payment orders and
10 communications canceling or amending payment orders. Different
11 cut-off times may apply to payment orders, cancellations, or
12 amendments or to different categories of payment orders,
13 cancellations, or amendments. A cut-off time may apply to
14 senders generally, or different cut-off times may apply to
15 different senders or categories of payment orders. If a
16 payment order or communication canceling or amending a payment
17 order is received after the close of a funds-transfer business
18 day or after the appropriate cut-off time on a funds-transfer
19 business day, the receiving bank may treat the payment order
20 or communication as received at the opening of the next
21 funds-transfer business day.
22 Section 22. Subsection (2) of section 670.204, Florida
23 Statutes, is amended to read:
24 670.204 Refund of payment and duty of customer to
25 report with respect to unauthorized payment order.--
26 (2) Reasonable time under subsection (1) may be fixed
27 by agreement as stated in s. 671.204(1), but the obligation of
28 a receiving bank to refund payment as stated in subsection (1)
29 may not otherwise be varied by agreement.
30 Section 23. Subsection (3) of section 675.102, Florida
31 Statutes, is amended to read:
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1 675.102 Scope.--
2 (3) With the exception of this subsection, subsections
3 (1) and (4), ss. 675.103(1)(i) and (j), 675.106(4), and
4 675.114(4), and except to the extent prohibited in ss.
5 671.102(2) ss. 671.102(3) and 675.117(4), the effect of this
6 chapter may be varied by agreement or by a provision stated or
7 incorporated by reference in an undertaking. A term in an
8 agreement or undertaking generally excusing liability or
9 generally limiting remedies for failure to perform obligations
10 is not sufficient to vary obligations prescribed by this
11 chapter.
12 Section 24. Subsection (1) of section 679.525, Florida
13 Statutes, is amended to read:
14 679.525 Processing fees.--
15 (1) Except as otherwise provided in subsection (3),
16 the nonrefundable processing fee for filing and indexing a
17 record under this part, other than an initial financing
18 statement of the kind described in s. 679.5021(3), is:
19 (a) For filing an initial financing statement, $25 for
20 the first page, which shall include the cost of filing a
21 termination statement for the financing statement;
22 (b) For filing an amendment, $12 for the first page;
23 (c) For indexing by additional debtor, secured party,
24 or assignee, $3 per additional name indexed;
25 (d) For use of a nonapproved form, $5;
26 (e) For each additional page attached to a record, $3;
27 (f) For filing a financing statement communicated by
28 an electronic filing process authorized by the filing office,
29 $15 with no additional fees for multiple names or attached
30 pages;
31
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1 (g) For filing an amendment communicated by an
2 electronic filing process authorized by the filing office, $5
3 with no additional fees for multiple names or attached pages;
4 (f)(h) For a certified copy of a financing statement
5 and any and all associated amendments, $30; and
6 (g)(i) For a photocopy of a filed record, $1 per page.
7 Section 25. Subsection (2) of section 680.518, Florida
8 Statutes, is amended to read:
9 680.518 Cover; substitute goods.--
10 (2) Except as otherwise provided with respect to
11 damages liquidated in the lease agreement (s. 680.504) or
12 otherwise determined pursuant to agreement of the parties (ss.
13 671.102(2) ss. 671.102(3) and 680.503), if a lessee's cover is
14 by lease agreement substantially similar to the original lease
15 agreement and the new lease agreement is made in good faith
16 and in a commercially reasonable manner, the lessee may
17 recover from the lessor as damages:
18 (a) The present value, as of the date of the
19 commencement of the term of the new lease agreement, of the
20 rent under the new lease agreement and applicable to that
21 period of the new lease term which is comparable to the then
22 remaining term of the original lease agreement minus the
23 present value as of the same date of the total rent for the
24 then remaining lease term of the original lease agreement; and
25 (b) Any incidental or consequential damages, less
26 expenses saved in consequence of the lessor's default.
27 Section 26. Subsection (1) of section 680.519, Florida
28 Statutes, is amended to read:
29 680.519 Lessee's damages for nondelivery, repudiation,
30 default, or breach of warranty in regard to accepted goods.--
31
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1 (1) Except as otherwise provided with respect to
2 damages liquidated in the lease agreement (s. 680.504) or
3 otherwise determined pursuant to agreement of the parties (ss.
4 671.102(2) ss. 671.102(3) and 680.503), if a lessee elects not
5 to cover or a lessee elects to cover and the cover is by lease
6 agreement, whether or not the lease agreement qualifies for
7 treatment under s. 680.518(2), or is by purchase or otherwise,
8 the measure of damages for nondelivery or repudiation by the
9 lessor or for rejection or revocation of acceptance by the
10 lessee is the present value, as of the date of the default, of
11 the then market rent minus the present value as of the same
12 date of the original rent, computed for the remaining lease
13 term of the original lease agreement, together with incidental
14 and consequential damages, less expenses saved in consequence
15 of the lessor's default.
16 Section 27. Subsection (2) of section 680.527, Florida
17 Statutes, is amended to read:
18 680.527 Lessor's rights to dispose of goods.--
19 (2) Except as otherwise provided with respect to
20 damages liquidated in the lease agreement (s. 680.504) or
21 otherwise determined pursuant to agreement of the parties (ss.
22 671.102(2) ss. 671.102(3) and 680.503), if the disposition is
23 by lease agreement substantially similar to the original lease
24 agreement and the new lease agreement is made in good faith
25 and in a commercially reasonable manner, the lessor may
26 recover from the lessee as damages:
27 (a) Accrued and unpaid rent as of the date of the
28 commencement of the term of the new lease agreement;
29 (b) The present value, as of the same date, of the
30 commencement of the term of the new lease agreement of the
31 total rent for the then remaining lease term of the original
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1 lease agreement minus the present value, as of the same date,
2 of the rent under the new lease agreement applicable to that
3 period of the new lease term which is comparable to the then
4 remaining term of the original lease agreement; and
5 (c) Any incidental damages allowed under s. 680.53,
6 less expenses saved in consequence of the lessee's default.
7 Section 28. Subsection (1) of section 680.528, Florida
8 Statutes, is amended to read:
9 680.528 Lessor's damages for nonacceptance or
10 repudiation.--
11 (1) Except as otherwise provided with respect to
12 damages liquidated in the lease agreement (s. 680.504) or
13 otherwise determined pursuant to agreement of the parties (ss.
14 671.102(2) ss. 671.102(3) and 580.503), if a lessor elects to
15 retain the goods or a lessor elects to dispose of the goods
16 and the disposition is by lease agreement that for any reason
17 does not qualify for treatment under s. 680.527(2), or is by
18 sale or otherwise, the lessor may recover from the lessee as
19 damages a default of the type described in s. 680.523(1) or
20 (3)(a), or if agreed, for other default of the lessee:
21 (a) Accrued and unpaid rent as of the date of default
22 if the lessee has never taken possession of the goods, or, if
23 the lessee has taken possession of the goods, as of the date
24 the lessor repossesses the goods or an earlier date on which
25 the lessee makes a tender of the goods to the lessor.
26 (b) The present value as of the date determined under
27 paragraph (a) of the total rent for the then remaining lease
28 term of the original lease agreement minus the present value
29 as of the same date of the market rent at the place where the
30 goods were located on that date computed for the same lease
31 term.
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1 (c) Any incidental damages allowed under s. 680.53,
2 less expenses saved in consequence of the lessee's default.
3 Section 29. Subsection (6) of section 713.901, Florida
4 Statutes, is amended to read:
5 713.901 Florida Uniform Federal Lien Registration
6 Act.--
7 (6) FEES.--
8 (a) The charges or fees of the Secretary of State,
9 with respect to a notice or certificate filed under this
10 section, or for searching records with respect thereto, are:
11 1. For filing a notice of lien, which fee shall
12 include the cost of filing a certificate of release or
13 nonstatement for said notice of lien, $25.
14 2. For indexing of each additional debtor or secured
15 party, $3.
16 3. For each additional facing page attached to a
17 notice or certificate, $3.
18 4. For use of a nonapproved form, $5.
19 5. For filing a certificate of discharge or
20 subordination, $12.
21 6. For filing a refiled notice of federal lien, $12.
22 7. For filing any other document required or permitted
23 to be filed under this act, $12.
24 8. For certifying any record, $10 shall be the same as
25 prescribed in s. 15.091.
26 (b) The charges or fees of the clerks of the circuit
27 court with respect to a notice or certificate filed under this
28 section shall be the same as prescribed in s. 28.24, relating
29 to instruments recorded in the official records.
30 Section 30. This act shall take effect January 1,
31 2008.
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1 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
2 CS Senate Bill 252
3
4 This committee substitute changes the underlying committee
substitute in that it:
5
-- corrects cross references to the Electronic Signatures in
6 Global and National Commerce Act; and
7 -- revises the terminology of the fee schedule for filings
under the Florida Uniform Federal Lien Registration Act.
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