| 2. The first such instance is described in subsection (3). A |
Under Section 9-407, [Maine cite section 9-1407] a provision in a |
lease agreement which prohibits the creation or enforcement of a |
security interest, including sales of lease contracts subject to |
Article 9 (Sections 9-102(1)(b) and 9-104(f) Section 9-109(a)(3)) |
[Maine cite section 9-1109, subsection (1), paragraph (c)], or |
makes it an event of default is generally not enforceable, |
reflecting the policy of Section 9-406 [Maine cite section 9- |
1406] and former Section 9-318(4). However, inasmuch as the |
creation of a security interest includes the sale of a lease |
contract, if there are then unperformed duties on the part of the |
lessor/seller, there could be a delegation of duties in the sale, |
and, if such a delegation actually takes place and is of a |
material performance, a provision in a lease agreement |
prohibiting it or making it an event of default would be |
enforceable, giving rise to the rights and remedies stated in |
subsection (5). The statute does not define "material." The |
parties may set standards to determine its meaning. The term is |
intended to exclude delegations of matters such as accounting to |
a professional accountant and the performance of, as opposed to |
the responsibility for, maintenance duties to a person in the |
maintenance service industry. |