2020 Georgia Code
Title 11 - Commercial Code
Article 2 - Sales
Part 1 - Short Title, General Construction, and Subject Matter
§ 11-2-104. Definitions: "Merchant"; "Between Merchants"; "Financing agency."

1. "Merchant" means a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill.
2. "Financing agency" means a bank, finance company, or other person who in the ordinary course of business makes advances against goods or documents of title or who by arrangement with either the seller or the buyer intervenes in ordinary course to make or collect payment due or claimed under the contract for sale, as by purchasing or paying the seller's draft or making advances against it or by merely taking it for collection whether or not documents of title accompany or are associated with the draft. "Financing agency" includes also a bank or other person who similarly intervenes between persons who are in the position of seller and buyer in respect to the goods (Code Section 11-2-707).
3. "Between merchants" means in any transaction with respect to which both parties are chargeable with the knowledge or skill of merchants.

(Code 1933, § 109A-2 - 104, enacted by Ga. L. 1962, p. 156, § 1; Ga. L. 2010, p. 481, § 2-3/HB 451.)

The 2010 amendment, effective May 27, 2010, inserted "or are associated with" near the end of the first sentence of subsection (2). See the Editor's notes for applicability.

- Ga. L. 2010, p. 481, § 3-1, not codified by the General Assembly, provides that: "This Act applies to a document of title that is issued or a bailment that arises on or after the effective date of this Act. This Act does not apply to a document of title that is issued or a bailment that arises before the effective date of this Act even if the document of title or bailment would be subject to this Act if the document of title had been issued or bailment had arisen on or after the effective date of this Act. This Act does not apply to a right of action that has accrued before the effective date of this Act." This Act became effective May 27, 2010.

Ga. L. 2010, p. 481, § 3-2, not codified by the General Assembly, provides that: "A document of title issued or a bailment that arises before the effective date of this Act and the rights, documents, and interests flowing from that document or bailment are governed by any statute or other rule amended or repealed by this Act as if such amendment or repeal had not occurred and may be terminated, completed, consummated, or enforced under that statute or other rule." This Act became effective May 27, 2010.

- For article discussing the implied warranty of fitness for a particular purpose, see 9 Ga. L. Rev. 149 (1974). For article discussing modification of consumer warranty provisions of the U.C.C. by the Magnuson-Moss Act (15 U.S.C. §§ 2301-2312) with special emphasis on attempted disclaimers, see 27 Mercer L. Rev. 1111 (1976). For article surveying developments in Georgia commercial law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 33 (1981). For comment on Sherrock v. Commercial Credit Corp., 290 A.2d 648 (Del. S. Ct. 1972), see 10 Ga. St. B.J. 110 (1973).

JUDICIAL DECISIONS

Farming corporation as "merchant."

- Evidence supported a finding that defendant farming corporation was a "merchant" bound by an oral agreement to sell 5,000 bushels of soybeans, which agreement was confirmed in writing to which the corporation made no response. Thunderbird Farms, Inc. v. Abney, 178 Ga. App. 335, 343 S.E.2d 127 (1986).

- Construing "merchants" in O.C.G.A. § 11-2-104(1) as not excluding as a matter of law farmers who orally "book" crops such as soybeans for sale protects them equally as well as the buyer. If the market price declines after the booking, they are assured of the higher booking price; the buyer cannot renege, as O.C.G.A. § 11-2-201(2) would apply. Goldkist, Inc. v. Brownlee, 182 Ga. App. 287, 355 S.E.2d 773 (1987).

- Although usually whether a party was a "merchant" for purposes of sale transactions under the Uniform Commercial Code was a question of law for a court, in a disputed peanut commodities transaction, there was no dispute that the parties were both merchants. Brooks Peanut Co. v. Great S. Peanut, LLC, 322 Ga. App. 801, 746 S.E.2d 272 (2013).

- Consumers, whose O.C.G.A. § 11-2-104 claim for breach of implied warranty of merchantability was successful, were entitled to reasonable attorney's fees based upon a rate that was about average for other consumer law attorneys in Georgia; however, the number of compensable hours was reduced to exclude work done on the unsuccessful claims. Gill v. Bluebird Body Co., 353 F. Supp. 2d 1265 (M.D. Ga. Jan. 28, 2005).

Cited in Greater S. Distrib. Co. v. Usry, 124 Ga. App. 525, 184 S.E.2d 486 (1971); Trust Co. v. Montgomery, 136 Ga. App. 742, 222 S.E.2d 196 (1975); Blaylock v. Georgia Mut. Ins. Co., 239 Ga. 462, 238 S.E.2d 105 (1977); Patron Aviation, Inc. v. Teledyne Indus., Inc., 154 Ga. App. 13, 267 S.E.2d 274 (1980); Bicknell v. Joyce Sportswear Co., 173 Ga. App. 897, 328 S.E.2d 564 (1985); Sweetapple Plastics, Inc. v. Philip Shuman & Sons, 77 Bankr. 304 (Bankr. M.D. Ga. 1987); Perimeter Ford, Inc. v. Edwards, 197 Ga. App. 747, 399 S.E.2d 520 (1990); Imex Int'l v. Wires Eng'g, 261 Ga. App. 329, 583 S.E.2d 117 (2003); In re Tucker, Bankr. (Bankr. M.D. Ga. June 25, 2013).

RESEARCH REFERENCES

Am. Jur. 2d.

- 67 Am. Jur. 2d, Sales, §§ 24, 25, 64-69.

- 77A C.J.S., Sales, § 1 et seq. 82 C.J.S., Statutes, § 309.

- Uniform Commercial Code (U.L.A.) § 2-104.

- Charging merchant with using false weights or measures as libel or slander, 13 A.L.R. 1019; 106 A.L.R. 437.

Liability of savings bank to depositor for amounts withdrawn by depositor's agent without presentation of passbook, 139 A.L.R. 835.

Who is "merchant" under UCC § 2-314(1) dealing with implied warranties of merchantability, 91 A.L.R.3d 876.

Farmers as "merchants" within provisions of UCC Article 2, dealing with sales, 95 A.L.R.3d 484.