LD 2245
pg. 93
Page 92 of 493 An Act to Adopt the Model Revised Article 9 Secured Transactions Page 94 of 493
Download Bill Text
LR 1087
Item 1

 
cite subsection (2)] states three basic prerequisites to the
existence of a security interest: value (paragraph (1) [Maine
cite paragraph (a)]), rights or power to transfer rights in
collateral (paragraph (2) [Maine cite paragraph (b)]), and
agreement plus satisfaction of an evidentiary requirement
(paragraph (3) [Maine cite paragraph (c)]). When all of these
elements exist, a security interest becomes enforceable between
the parties and attaches under subsection (a) [Maine cite
subsection (1)]. Subsection (c) [Maine cite subsection (3)]
identifies certain exceptions to the general rule of subsection
(b) [Maine cite subsection (2)].

 
3. Security Agreement; Authentication. Under subsection
(b)(3) [Maine cite subsection (2)], enforceability requires the
debtor's security agreement and compliance with an evidentiary
requirement in the nature of a Statute of Frauds. Paragraph
(3)(A) [Maine cite paragraph (c), subparagraph (i)] represents
the most basic of the evidentiary alternatives, under which the
debtor must authenticate a security agreement that provides a
description of the collateral. Under Section 9-102 [Maine cite
section 9-1102], a "security agreement" is "an agreement that
creates or provides for a security interest." Neither that
definition nor the requirement of paragraph (3)(A) [Maine cite
paragraph (c), subparagraph (i)] rejects the deeply rooted
doctrine that a bill of sale, although absolute in form, may be
shown in fact to have been given as security. Under this
Article, as under prior law, a debtor may show by parol evidence
that a transfer purporting to be absolute was in fact for
security. Similarly, a self-styled "lease" may serve as a
security agreement if the agreement creates a security interest.
See Section 1-201(37) (distinguishing security interest from
lease).

 
4. Possession, Delivery, or Control Pursuant to Security
Agreement. The other alternatives in subsection (b)(3) [Maine
cite subsection (2), paragraph (c)] dispense with the requirement
of an authenticated security agreement and provide alternative
evidentiary tests. Under paragraph (3)(B) [Maine cite paragraph
(c), subparagraph (ii)], the secured party's possession
substitutes for the debtor's authentication under paragraph
(3)(A) [Maine cite paragraph (c), subparagraph (i)] if the
secured party's possession is "pursuant to the debtor's security
agreement." That phrase refers to the debtor's agreement to the
secured party's possession for the purpose of creating a security
interest. The phrase should not be confused with the phrase
"debtor has authenticated a security agreement," used in
paragraph (3)(A) [Maine cite paragraph (c), subparagraph (i)],
which contemplates the debtor's authentication of a record. In
the unlikely event that possession is obtained without the
debtor's agreement, possession would not suffice as a substitute


Page 92 of 493 Top of Page Page 94 of 493