LD 2245
pg. 388
Page 387 of 493 An Act to Adopt the Model Revised Article 9 Secured Transactions Page 389 of 493
Download Bill Text
LR 1087
Item 1

 
1. Source. Former Section 9-504(1), (3)

 
2. Commercially Reasonable Dispositions. Subsection (a)
[Maine cite subsection (1)] follows former Section 9-504 by
permitting a secured party to dispose of collateral in a
commercially reasonable manner following a default. Although
subsection (b) [Maine cite subsection (2)] permits both public
and private dispositions, "every aspect of a disposition . . .
must be commercially reasonable." This section encourages
private dispositions on the assumption that they frequently will
result in higher realization on collateral for the benefit of all
concerned. Subsection (a) [Maine cite subsection (1)] does not
restrict dispositions to sales; collateral may be sold, leased,
licensed, or otherwise disposed. Section 9-627 [Maine cite
section 9-1627] provides guidance for determining the
circumstances under which a disposition is "commercially
reasonable."

 
3. Time of Disposition. This Article does not specify a
period within which a secured party must dispose of collateral.
This is consistent with this Article's policy to encourage
private dispositions through regular commercial channels. It
may, for example, be prudent not to dispose of goods when the
market has collapsed. Or, it might be more appropriate to sell a
large inventory in parcels over a period of time instead of in
bulk. Of course, under subsection (b) [Maine cite subsection
(2)] every aspect of a disposition of collateral must be
commercially reasonable. This requirement explicitly includes
the "method, manner, time, place and other terms." For example,
if a secured party does not proceed under Section 9-620 [Maine
cite section 9-1620] and holds collateral for a long period of
time without disposing of it, and if there is no good reason for
not making a prompt disposition, the secured party may be
determined not to have acted in a "commercially reasonable"
manner. See also Section 1-203 (general obligation of good
faith).

 
4. Pre-Disposition Preparation and Processing. Former
Section 9-504(1) appeared to give the secured party the choice of
disposing of collateral either "in its then condition or
following any commercially reasonable preparation or processing."
Some courts held that the "commercially reasonable" standard of
former Section 9-504(3) nevertheless could impose an affirmative
duty on the secured party to process or prepare the collateral
prior to disposition. Subsection (a) [Maine cite subsection (1)]
retains the substance of the quoted language. Although courts
should not be quick to impose a duty of preparation or processing
on the secured party, subsection (a) [Maine cite subsection (1)]
does not grant the secured party the right to dispose of the
collateral "in its then condition" under


Page 387 of 493 Top of Page Page 389 of 493