401.201(29)
(29) "Party", as distinct from "3rd party", means a person who has engaged in a transaction or made an agreement within
chs. 401 to
411.
401.201(31)
(31) "Presumption" or "presumed" means that the trier of fact must find the existence of the fact presumed unless and until evidence is introduced which would support a finding of its nonexistence.
401.201(32)
(32) "Purchase" includes taking by sale, discount, negotiation, mortgage, pledge, lien, issue or reissue, gift or any other voluntary transaction creating an interest in property.
401.201(33)
(33) "Purchaser" means a person who takes by purchase.
401.201(34)
(34) "Remedy" means any remedial right to which an aggrieved party is entitled with or without resort to a tribunal.
401.201(35)
(35) "Representative" includes an agent, an officer of a corporation or association, and a trustee, executor or administrator of an estate, or any other person empowered to act for another.
401.201(37)(a)(a) "Security interest" means an interest in personal property or fixtures that secures payment or performance of an obligation. The retention or reservation of title by a seller of goods notwithstanding shipment or delivery to the buyer is limited in effect to a reservation of a "security interest". The term also includes any interest of a buyer of accounts or chattel paper that is subject to
ch. 409. The special property interest of a buyer of goods on identification of such goods to a contract for sale under
s. 402.401 is not a "security interest", but a buyer may also acquire a "security interest" by complying with
ch. 409. Unless a lease or consignment is intended as security, reservation of title thereunder is not a "security interest" but a consignment is in any event subject to
s. 402.326.
401.201(37)(b)
(b) Whether a transaction creates a lease or security interest is determined by the facts of each case. A transaction creates a security interest if the consideration that the lessee is to pay the lessor for the right to possession and use of the goods is an obligation for the term of the lease not subject to termination by the lessee and any of the following applies:
401.201(37)(b)1.
1. The original term of the lease is equal to or greater than the remaining economic life of the goods.
401.201(37)(b)2.
2. The lessee is bound to renew the lease for the remaining economic life of the goods or is bound to become the owner of the goods.
401.201(37)(b)3.
3. The lessee has an option to renew the lease for the remaining economic life of the goods for no additional consideration or nominal additional consideration upon compliance with the lease agreement.
401.201(37)(b)4.
4. The lessee has an option to become the owner of the goods for no additional consideration or nominal additional consideration upon compliance with the lease agreement.
401.201(37)(c)
(c) A transaction does not create a security interest merely because it provides any of the following:
401.201(37)(c)1.
1. That the present value, as defined in
s. 411.103 (1) (u), of the consideration that the lessee is obligated to pay the lessor for the right to possession and use of the goods is substantially equal to or is greater than the fair market value of the goods when the lease is entered into.
401.201(37)(c)2.
2. That the lessee assumes risk of loss of the goods, or agrees to pay taxes, insurance, filing, recording or registration fees, or service or maintenance costs with respect to the goods.
401.201(37)(c)3.
3. That the lessee has an option to renew the lease or to become the owner of the goods.
401.201(37)(c)4.
4. That the lessee has an option to renew the lease for a fixed rent that is equal to or greater than the reasonably predictable fair market rent for the use of the goods for the term of the renewal when the option is to be performed.
401.201(37)(c)5.
5. That the lessee has an option to become the owner of the goods for a fixed price that is equal to or greater than the reasonably predictable fair market value of the goods when the option is to be performed.
401.201(37)(d)1.
1. Additional consideration is not nominal if, when the option to renew the lease is granted to the lessee, the rent is stated to be the fair market rent for the use of the goods for the term of the renewal determined when the option is to be performed, or when the option to become the owner of the goods is granted to the lessee the price is stated to be the fair market value of the goods determined when the option is to be performed. Additional consideration is nominal if it is less than the lessee's reasonably predictable cost of performing under the lease agreement if the option is not exercised.
401.201(37)(d)2.
2. Reasonably predictable and remaining economic life of the goods are determined with reference to the facts and circumstances when the transaction is entered into.
401.201(38)
(38) "Send" in connection with any writing or notice means to deposit in the mail or deliver for transmission by any other usual means of communication with postage or cost of transmission provided for and properly addressed and in the case of an instrument to an address specified thereon or otherwise agreed, or if there is none to any address reasonable under the circumstances. The receipt of any writing or notice within the time at which it would have arrived if properly sent has the effect of a proper sending.
401.201(39)
(39) "Signed" includes any symbol executed or adopted by a party with present intention to authenticate a writing.
401.201(41)
(41) "Telegram" includes a message transmitted by radio, teletype, cable, any mechanical method of transmission, or the like.
401.201(42)
(42) "Term" means that portion of an agreement which relates to a particular matter.
401.201(43)
(43) "Unauthorized" signature means one made without actual, implied or apparent authority and includes a forgery.
401.201(44)
(44) "Value". Except as otherwise provided with respect to negotiable instruments and bank collections (
ss. 403.303,
404.210 and
404.211) a person gives "value" for rights if the person acquires them:
401.201(44)(a)
(a) In return for a binding commitment to extend credit or for the extension of immediately available credit whether or not drawn upon and whether or not a charge-back is provided for in the event of difficulties in collection; or
401.201(44)(b)
(b) As security for or in total or partial satisfaction of a preexisting claim; or
401.201(44)(c)
(c) By accepting delivery pursuant to a preexisting contract for purchase; or
401.201(44)(d)
(d) Generally, in return for any consideration sufficient to support a simple contract.
401.201(45)
(45) "Warehouse receipt" means a receipt issued by a person engaged in the business of storing goods for hire.
401.201(46)
(46) "Written" or "writing" includes printing, typewriting or any other intentional reduction to tangible form.
401.201 Annotation
Purchasers became buyers in ordinary course of business when goods became identified to a purchase contract. Daniels v. Bank of Hayward,
144 Wis. 2d 931,
425 N.W.2d 416 (1988).
401.201 Annotation
Buyer in ordinary course of business under article 9 of the uniform commercial code (and related matters). Skilton, 1974 WLR 1.
401.202
401.202
Prima facie evidence by third party documents. A document in due form purporting to be a bill of lading, policy or certificate of insurance, official weigher's or inspector's certificate, consular invoice, or any other document authorized or required by the contract to be issued by a third party shall be prima facie evidence of its own authenticity and genuineness and of the facts stated in the document by the third party.
401.203
401.203
Obligation of good faith. Every contract or duty within
chs. 401 to
411 imposes an obligation of good faith in its performance or enforcement.
401.203 History
History: 1979 c. 89;
1991 a. 148,
304,
315.
401.203 Annotation
This section does not support an independent cause of action for failure to act in good faith under a contract. Hauer v. Union State Bank of Wautoma,
192 Wis. 2d 576,
532 N.W.2d 456 (Ct. App. 1995).
401.203 Annotation
Good faith under the code. Eisenberg, 54 MLR 1.
401.204
401.204
Time; reasonable time; "seasonably". 401.204(1)(1) Whenever
chs. 401 to
411 require any action to be taken within a reasonable time, any time which is not manifestly unreasonable may be fixed by agreement.
401.204(2)
(2) What is a reasonable time for taking any action depends on the nature, purpose and circumstances of such action.
401.204(3)
(3) An action is taken "seasonably" when it is taken at or within the time agreed or if no time is agreed at or within a reasonable time.
401.204 History
History: 1979 c. 89;
1991 a. 148,
304,
315.
401.205
401.205
Course of dealing and usage of trade. 401.205(1)
(1) A course of dealing is a sequence of previous conduct between the parties to a particular transaction which is fairly to be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct.
401.205(2)
(2) A usage of trade is any practice or method of dealing having such regularity of observance in a place, vocation or trade as to justify an expectation that it will be observed with respect to the transaction in question. The existence and scope of such a usage are to be proved as facts. If it is established that such a usage is embodied in a written trade code or similar writing the interpretation of the writing is for the court.
401.205(3)
(3) A course of dealing between parties and any usage of trade in the vocation or trade in which they are engaged or of which they are or should be aware give particular meaning to and supplement or qualify terms of an agreement.
401.205(4)
(4) The express terms of an agreement and an applicable course of dealing or usage of trade shall be construed wherever reasonable as consistent with each other; but when such construction is unreasonable express terms control both course of dealing and usage of trade and course of dealing controls usage of trade.
401.205(5)
(5) An applicable usage of trade in the place where any part of performance is to occur shall be used in interpreting the agreement as to that part of the performance.
401.205(6)
(6) Evidence of a relevant usage of trade offered by one party is not admissible unless and until the party has given the other party such notice as the court finds sufficient to prevent unfair surprise to the latter.
401.205 History
History: 1991 a. 316.
401.206
401.206
Statute of frauds for kinds of personal property not otherwise covered. 401.206(1)
(1) Except in the cases described in
sub. (2) a contract for the sale of personal property for the price of $5,000 or more is not enforceable by way of action or defense unless there is some writing which indicates that a contract for sale has been made between the parties at a defined or stated price, reasonably identifies the subject matter, and is signed by the party against whom enforcement is sought or by the party's authorized agent.
401.206(3)
(3) A contract which, but for
sub. (1) would be enforceable, is enforceable:
401.206(3)(a)
(a) If the party against whom enforcement is sought admits in that party's pleading, testimony or otherwise in court that a contract for sale was made, but the contract is not enforceable under
sub. (1) beyond the quantity or extent of personal property admitted; or
401.206(3)(b)
(b) With respect to personal property for which payment has been made and accepted or which has been received and accepted.
401.206 History
History: 1991 a. 316;
1997 a. 297.
401.206 Annotation
A memo regarding negotiations for a sale did not satisfy the statute of frauds. Dairyland Financial Corp. v. FICB of St. Paul,
852 F.2d 242 (7th Cir. 1988).
401.207
401.207
Performance or acceptance under reservation of rights. 401.207(1)(1) A party who, 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.
401.207(2)
(2) Subsection (1) does not apply to an accord and satisfaction.
401.207 History
History: 1995 a. 449.
401.207 Annotation
This section does not apply to "full payment" checks. Three rules relating to consideration and accord and satisfaction are discussed. Flambeau Products v. Honeywell Systems,
116 Wis. 2d 95,
341 N.W.2d 655 (1984).
401.208
401.208
Option to accelerate at will. A term providing that one party or the party's successor in interest may accelerate payment or performance or require collateral or additional collateral "at will" or "when the party deems himself or herself insecure" or in words of similar import shall be construed to mean that the party may do so only if the party in good faith believes that the prospect of payment or performance is impaired. The burden of establishing lack of good faith is on the party against whom the power has been exercised.
401.208 History
History: 1991 a. 316.
401.209
401.209
Subordinated obligations. An obligation may be issued as subordinated to payment of another obligation of the person obligated, or a creditor may subordinate the creditor's right to payment of an obligation by agreement with either the person obligated or another creditor of the person obligated. Such a subordination does not create a security interest as against either the common debtor or a subordinated creditor. This section shall be construed as declaring the law as it existed prior to the enactment of this section and not as modifying it.
401.209 History
History: 1991 a. 316.
