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2007 Oregon Code - Chapter 72a :: Chapter 72A - Leases

Chapter 72A — Leases

 

2007 EDITION

 

LEASES

 

COMMERCIAL TRANSACTIONS

 

GENERAL PROVISIONS

 

72A.1010  Short title

 

72A.1020  Scope

 

72A.1030  Definitions and index of definitions

 

72A.1040  Leases subject to other statutes

 

72A.1050  Territorial application of act to goods covered by certificate of title

 

72A.1060  Limitation on power of parties to consumer lease to choose applicable law and judicial forum

 

72A.1070  Waiver or renunciation of claim or right after default

 

72A.1080  Unconscionability

 

72A.1090  Option to accelerate at will

 

72A.1095  Subordination by agreement

 

FORMATION AND CONSTRUCTION OF LEASE CONTRACT

 

72A.2010  Statute of frauds

 

72A.2020  Final written expression; parol or extrinsic evidence

 

72A.2030  Seals inoperative

 

72A.2040  Formation in general

 

72A.2050  Firm offers

 

72A.2060  Offer and acceptance in formation of lease contract

 

72A.2070  Course of performance or practical construction

 

72A.2080  Modification, rescission and waiver

 

72A.2090  Lessee under finance lease as beneficiary of supply contract

 

72A.2100  Express warranties

 

72A.2110  Warranties against interference and against infringement; lessee’s obligation against infringement

 

72A.2120  Implied warranty of merchantability

 

72A.2130  Implied warranty of fitness for particular purpose

 

72A.2140  Exclusion or modification of warranties

 

72A.2150  Cumulation and conflict of warranties express or implied

 

72A.2160  Third-party beneficiaries of express and implied warranties

 

72A.2170  Identification

 

72A.2180  Insurance and proceeds

 

72A.2190  Risk of loss

 

72A.2200  Effect of default on risk of loss

 

72A.2210  Casualty to identified goods

 

EFFECT OF LEASE CONTRACT

 

72A.3010  Enforceability of lease contract

 

72A.3020  Title to and possession of goods

 

72A.3030  Alienability of party’s interest under lease contract or of lessor’s residual interest in goods; delegation of performance; transfer of rights

 

72A.3040  Subsequent lease of goods by lessor

 

72A.3050  Sale or sublease of goods by lessee

 

72A.3060  Priority of certain liens arising by operation of law

 

72A.3070  Priority of liens arising by attachment or levy on goods; priority of certain security interests in goods

 

72A.3080  Special rights of creditors

 

72A.3090  Lessor’s and lessee’s rights when goods become fixtures

 

72A.3095  Fixture filing recorded and indexed as mortgage

 

72A.3100  Lessor’s and lessee’s rights when goods become accessions

 

PERFORMANCE OF LEASE CONTRACT: REPUDIATED, SUBSTITUTED AND EXCUSED

 

72A.4010  Insecurity; adequate assurance of performance

 

72A.4020  Anticipatory repudiation

 

72A.4030  Retraction of anticipatory repudiation

 

72A.4040  Substituted performance

 

72A.4050  Excused performance

 

72A.4060  Procedure on excused performance

 

72A.4070  Irrevocable promises; finance leases

 

DEFAULT

 

72A.5010  Default; procedure

 

72A.5020  Notice after default

 

72A.5030  Modification or impairment of rights and remedies

 

72A.5040  Liquidation of damages

 

72A.5050  Cancellation and termination and effect of cancellation, termination, rescission or fraud on rights and remedies

 

72A.5060  Statute of limitations

 

72A.5070  Proof of market rent; time and place

 

72A.5080  Lessee’s remedies

 

72A.5090  Lessee’s rights on improper delivery; rightful rejection

 

72A.5100  Installment lease contracts; rejection and default

 

72A.5110  Merchant lessee’s duties as to rightfully rejected goods

 

72A.5120  Lessee’s duties as to rightfully rejected goods

 

72A.5130  Cure by lessor of improper tender or delivery; replacement

 

72A.5140  Waiver of lessee’s objections

 

72A.5150  Acceptance of goods

 

72A.5160  Effect of acceptance of goods; notice of default; burden of establishing default after acceptance; notice of claim or litigation to person answerable

 

72A.5170  Revocation of acceptance of goods

 

72A.5180  Cover; substitute goods

 

72A.5190  Lessee’s damages for nondelivery, repudiation, default and breach of warranty in regard to accepted goods

 

72A.5200  Lessee’s incidental and consequential damages

 

72A.5210  Lessee’s right to specific performance or replevin

 

72A.5220  Lessee’s right to goods on lessor’s insolvency

 

72A.5230  Lessor’s remedies

 

72A.5240  Lessor’s right to identify goods to lease contract

 

72A.5250  Lessor’s right to possession of goods

 

72A.5260  Lessor’s stoppage of delivery in transit or otherwise

 

72A.5270  Lessor’s rights to dispose of goods

 

72A.5280  Lessor’s damages for default

 

72A.5290  Lessor’s action for the rent

 

72A.5295  Lessor’s recovery for loss of or damage to residual interest in goods

 

72A.5300  Lessor’s incidental damages

 

72A.5310  Standing to sue third parties for injury to goods

 

GENERAL PROVISIONS

 

      72A.1010 Short title. This chapter may be cited as the Uniform Commercial Code–Leases. [1989 c.676 §1; 1995 c.79 §21]

 

      72A.1020 Scope. This chapter applies to any transaction, regardless of form, that creates a lease. [1989 c.676 §2]

 

      72A.1030 Definitions and index of definitions. (1) As used in this chapter, unless the context otherwise requires:

      (a) “Buyer in ordinary course of business” means a person who in good faith and without knowledge that the sale to the person is in violation of the ownership rights or security interest or leasehold interest of a third party in the goods buys in ordinary course from a person in the business of selling goods of that kind but does not include a pawnbroker. “Buying” may be for cash or by exchange of other property or on secured or unsecured credit and includes receiving goods or documents of title under a preexisting contract for sale but does not include a transfer in bulk or as security for or in total or partial satisfaction of a money debt.

      (b) “Cancellation” occurs when either party puts an end to the lease contract for default by the other party.

      (c) “Commercial unit” means such a unit of goods as by commercial usage is a single whole for purposes of lease and division of which materially impairs its character or value on the market or in use. A “commercial unit” may be a single article, as a machine, or a set of articles, as a suite of furniture or a line of machinery, or a quantity, as a gross or carload, or any other unit treated in use or in the relevant market as a single whole.

      (d) “Conforming goods” or “performance under a lease contract” means goods or performance that are in accordance with the obligations under the lease contract.

      (e) “Consumer lease” means a lease that a lessor regularly engaged in the business of leasing or selling makes to a lessee who is an individual and who takes under the lease primarily for a personal, family or household purpose, if the total payments to be made under the lease contract, excluding payments for options to renew or buy, do not exceed $25,000.

      (f) “Fault” means wrongful act, omission, breach or default.

      (g) “Finance lease” means a lease in which the lessor does not select, manufacture or supply the goods, the lessor acquires the goods or the right to possession and use of the goods in connection with the lease, and either:

      (A) The lessee receives a copy of the contract evidencing the lessor’s purchase of the goods on or before signing the lease contract;

      (B) The lessee’s approval of the contract evidencing the lessor’s purchase of the goods is a condition to effectiveness of the lease contract;

      (C) The lessor informs the lessee in writing of the identity of the supplier unless the lessee has selected the supplier and directed the lessor to purchase the goods from the supplier;

      (D) The lessor informs the lessee in writing that the lessee may have rights under the contract evidencing the lessor’s purchase of the goods and the lessor advises the lessee in writing to contact the supplier for a description of any such rights; or

      (E) The lease contract discloses all warranties and other rights provided to the lessee by the lessor and supplier in connection with the lease contract and informs the lessee that there are no warranties or other rights provided to the lessee by the lessor and supplier other than those disclosed in the lease contract.

      (h) “Goods” means all things that are movable at the time of identification to the lease contract, or are fixtures as provided in ORS 72A.3090, but “goods” does not include money, documents, instruments, accounts, chattel paper, general intangibles or minerals or the like, including oil and gas, before extraction. “Goods” also includes the unborn young of animals.

      (i) “Installment lease contract” means a lease contract that authorizes or requires the delivery of goods in separate lots to be separately accepted, even though the lease contract contains a clause “each delivery is a separate lease” or its equivalent.

      (j) “Lease” means a transfer of the right to possession and use of goods for a term in return for consideration, but a sale, including a sale on approval or a sale or return, or retention or creation of a security interest is not a lease. Unless the context clearly indicates otherwise, “lease” includes a sublease.

      (k) “Lease agreement” means the bargain, with respect to the lease, of the lessor and the lessee in fact as found in the language or by implication from other circumstances including course of dealing or usage of trade or course of performance as provided in this chapter. Unless the context clearly indicates otherwise, “lease agreement” includes a sublease agreement.

      (L) “Lease contract” means the total legal obligation that results from the lease agreement as affected by this chapter and any other applicable rules of law. Unless the context clearly indicates otherwise, “lease contract” includes a sublease contract.

      (m) “Leasehold interest” means the interest of the lessor or the lessee under a lease contract.

      (n) “Lessee” means a person who acquires the right to possession and use of goods under a lease. Unless the context clearly indicates otherwise, “lessee” includes a sublessee.

      (o) “Lessee in ordinary course of business” means a person who in good faith and without knowledge that the lease to the person is in violation of the ownership rights or security interest or leasehold interest of a third party in the goods leases in ordinary course from a person in the business of selling or leasing goods of that kind but does not include a pawnbroker. “Leasing” may be for cash or by exchange of other property or on secured or unsecured credit and includes receiving goods or documents of title under a preexisting lease contract but does not include a transfer in bulk or as security for or in total or partial satisfaction of a money debt.

      (p) “Lessor” means a person who transfers the right to possession and use of goods under a lease. Unless the context clearly indicates otherwise, “lessor” includes a sublessor.

      (q) “Lessor’s residual interest” means the lessor’s interest in the goods after expiration, termination or cancellation of the lease contract.

      (r) “Lien” means a charge against or interest in goods to secure payment of a debt or performance of an obligation, but “lien” does not include a security interest.

      (s) “Lot” means a parcel or a single article that is the subject matter of a separate lease or delivery, whether or not it is sufficient to perform the lease contract.

      (t) “Merchant lessee” means a lessee that is a merchant with respect to goods of the kind subject to the lease.

      (u) “Present value” means the amount as of a date certain of one or more sums payable in the future, discounted to the date certain. The discount is determined by the interest rate specified by the parties if the rate was not manifestly unreasonable at the time the transaction was entered into; otherwise, the discount is determined by a commercially reasonable rate that takes into account the facts and circumstances of each case at the time the transaction was entered into.

      (v) “Purchase” includes taking by sale, lease, mortgage, security interest, pledge, gift or any other voluntary transaction creating an interest in goods.

      (w) “Sublease” means a lease of goods the right to possession and use of which was acquired by the lessor as a lessee under an existing lease.

      (x) “Supplier” means a person from whom a lessor buys or leases goods to be leased under a finance lease.

      (y) “Supply contract” means a contract under which a lessor buys or leases goods to be leased.

      (z) “Termination” occurs when either party pursuant to a power created by agreement or law puts an end to the lease contract otherwise than for default.

      (2) Other definitions applying to this chapter and the sections in which they appear are:

      (a) “Accessions” as defined in ORS 72A.3100.

      (b) “Account” as defined in ORS 79.0102.

      (c) “Between merchants” as defined in ORS 72.1040.

      (d) “Buyer” as defined in ORS 72.1030.

      (e) “Chattel paper” as defined in ORS 79.0102.

      (f) “Construction mortgage” as defined in ORS 72A.3090.

      (g) “Consumer goods” as defined in ORS 79.0102.

      (h) “Document” as defined in ORS 79.0102.

      (i) “Encumbrance” as defined in ORS 72A.3090.

      (j) “Entrusting” as defined in ORS 72.4030.

      (k) “Fixture filing” as defined in ORS 72A.3090.

      (L) “Fixtures” as defined in ORS 72A.3090.

      (m) “General intangible” as defined in ORS 79.0102.

      (n) “Good faith” as defined in ORS 72.1030.

      (o) “Instrument” as defined in ORS 79.0102.

      (p) “Merchant” as defined in ORS 72.1040.

      (q) “Mortgage” as defined in ORS 79.0102.

      (r) “Purchase money lease” as defined in ORS 72A.3090.

      (s) “Pursuant to commitment” as defined in ORS 79.0102.

      (t) “Receipt” as defined in ORS 72.1030.

      (u) “Sale” as defined in ORS 72.1060.

      (v) “Sale on approval” as defined in ORS 72.3260.

      (w) “Sale or return” as defined in ORS 72.3260.

      (x) “Seller” as defined in ORS 72.1030.

      (3) In addition, ORS chapter 71 contains general definitions and principles of construction and interpretation applicable throughout this chapter. [1989 c.676 §3; 1993 c.646 §1; 2001 c.445 §141]

 

      72A.1040 Leases subject to other statutes. (1) A lease, although subject to this chapter, is also subject to any applicable:

      (a) Certificate of title statute of this state;

      (b) Certificate of title statute of another jurisdiction as described in ORS 72A.1050; or

      (c) Consumer protection statute of this state, or final consumer protection decision of a court of this state existing on November 4, 1993.

      (2) In case of conflict between this chapter, other than ORS 72A.1050, 72A.3040 and 72A.3050, and a statute or decision referred to in subsection (1) of this section, the statute or decision controls.

      (3) Failure to comply with an applicable law has only the effect specified therein. [1989 c.676 §4; 1993 c.646 §2]

 

      72A.1050 Territorial application of act to goods covered by certificate of title. Subject to the provisions of ORS 72A.3040 and 72A.3050, with respect to goods covered by a certificate of title issued under a statute of this state or of another jurisdiction, compliance and the effect of compliance or noncompliance with a certificate of title statute are governed by the law, including the conflict of laws rules, of the jurisdiction issuing the certificate until the earlier of:

      (1) Surrender of the certificate; or

      (2) Four months after the goods are removed from that jurisdiction and thereafter until a new certificate of title is issued by another jurisdiction. [1989 c.676 §5]

 

      72A.1060 Limitation on power of parties to consumer lease to choose applicable law and judicial forum. (1) If the law chosen by the parties to a consumer lease is that of a jurisdiction other than a jurisdiction in which the lessee or lessor resides at the time the lease agreement becomes enforceable or within 30 days thereafter or in which the goods are to be used, the choice is not enforceable.

      (2) If the judicial forum chosen by the parties to a consumer lease is a forum that would not otherwise have jurisdiction over the lessee, the choice is not enforceable. [1989 c.676 §6]

 

      72A.1070 Waiver or renunciation of claim or right after default. Any claim or right arising out of an alleged default or breach of warranty may be discharged in whole or in part without consideration by a written waiver or renunciation signed and delivered by the aggrieved party. [1989 c.676 §7]

 

      72A.1080 Unconscionability. (1) If the court as a matter of law finds a lease contract or any clause of a lease contract to have been unconscionable at the time it was made the court may refuse to enforce the lease contract, or it may enforce the remainder of the lease contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.

      (2) When it is claimed or appears to the court that the lease contract or any clause thereof may be unconscionable, the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination. [1989 c.676 §8]

 

      72A.1090 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 purports to be insecure” or in words of similar import must be construed to mean that the party has power to do so only if the party in good faith believes that the prospect of payment or performance is impaired. [1989 c.676 §9]

 

      72A.1095 Subordination by agreement. Nothing in this chapter prevents subordination by agreement by any person entitled to priority. [1993 c.646 §22]

 

FORMATION AND CONSTRUCTION OF LEASE CONTRACT

 

      72A.2010 Statute of frauds. (1) A lease contract is not enforceable by way of action or defense unless:

      (a) The total payments to be made under the lease contract, excluding payments for options to renew or buy, are less than $1,000; or

      (b) There is a writing, signed by the party against whom enforcement is sought or by that party’s authorized agent, sufficient to indicate that a lease contract has been made between the parties and to describe the goods leased and the lease term.

      (2) Any description of leased goods or of the lease term is sufficient and satisfies subsection (1)(b) of this section, whether or not it is specific, if it reasonably identifies what is described.

      (3) A writing is not insufficient because it omits or incorrectly states a term agreed upon, but the lease contract is not enforceable under subsection (1)(b) of this section beyond the lease term and the quantity of goods shown in the writing.

      (4) A lease contract that does not satisfy the requirements of subsection (1) of this section, but which is valid in other respects, is enforceable:

      (a) If the goods are to be specially manufactured or obtained for the lessee and are not suitable for lease or sale to others in the ordinary course of the lessor’s business, and the lessor, before notice of repudiation is received and under circumstances that reasonably indicate that the goods are for the lessee, has made either a substantial beginning of their manufacture or commitments for their procurement;

      (b) If the party against whom enforcement is sought admits in that party’s pleading, testimony or otherwise in court that a lease contract was made, but the lease contract is not enforceable under this provision beyond the quantity of goods admitted; or

      (c) With respect to goods that have been received and accepted by the lessee.

      (5) The lease term under a lease contract referred to in subsection (4) of this section is:

      (a) If there is a writing signed by the party against whom enforcement is sought or by that party’s authorized agent specifying the lease term, the term so specified;

      (b) If the party against whom enforcement is sought admits in that party’s pleading, testimony or otherwise in court a lease term, the term so admitted; or

      (c) A reasonable lease term. [1989 c.676 §10]

 

      72A.2020 Final written expression; parol or extrinsic evidence. Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented:

      (1) By course of dealing or usage of trade or by course of performance; and

      (2) By evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement. [1989 c.676 §11]

 

      72A.2030 Seals inoperative. The affixing of a seal to a writing evidencing a lease contract or an offer to enter into a lease contract does not render the writing a sealed instrument and the law with respect to sealed instruments does not apply to the lease contract or offer. [1989 c.676 §12]

 

      72A.2040 Formation in general. (1) A lease contract may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of a lease contract.

      (2) An agreement sufficient to constitute a lease contract may be found although the moment of its making is undetermined.

      (3) Although one or more terms are left open, a lease contract does not fail for indefiniteness if the parties have intended to make a lease contract and there is a reasonably certain basis for giving an appropriate remedy. [1989 c.676 §13]

 

      72A.2050 Firm offers. An offer by a merchant to lease goods to or from another person in a signed writing that by its terms gives assurance it will be held open is not revocable, for lack of consideration, during the time stated or, if no time is stated, for a reasonable time, but in no event may the period of irrevocability exceed three months. Any such term of assurance on a form supplied by the offeree must be separately signed by the offeror. [1989 c.676 §14]

 

      72A.2060 Offer and acceptance in formation of lease contract. (1) Unless otherwise unambiguously indicated by the language or circumstances, an offer to make a lease contract must be construed as inviting acceptance in any manner and by any medium reasonable in the circumstances.

      (2) If the beginning of a requested performance is a reasonable mode of acceptance, an offeror who is not notified of acceptance within a reasonable time may treat the offer as having lapsed before acceptance. [1989 c.676 §15]

 

      72A.2070 Course of performance or practical construction. (1) If a lease contract involves repeated occasions for performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other, any course of performance accepted or acquiesced in without objection is relevant to determine the meaning of the lease agreement.

      (2) The express terms of a lease agreement and any course of performance, as well as any course of dealing and usage of trade, must be construed whenever reasonable as consistent with each other; but if that construction is unreasonable, express terms control course of performance, course of performance controls both course of dealing and usage of trade, and course of dealing controls usage of trade.

      (3) Subject to the provisions of ORS 72A.2080 on modification and waiver, course of performance is relevant to show a waiver or modification of any term inconsistent with the course of performance. [1989 c.676 §16]

 

      72A.2080 Modification, rescission and waiver. (1) An agreement modifying a lease contract needs no consideration to be binding.

      (2) A signed lease agreement that excludes modification or rescission except by a signed writing may not be otherwise modified or rescinded, but, except as between merchants, such a requirement on a form supplied by a merchant must be separately signed by the other party.

      (3) Although an attempt at modification or rescission does not satisfy the requirements of subsection (2) of this section, it may operate as a waiver.

      (4) A party who has made a waiver affecting an executory portion of a lease contract may retract the waiver by reasonable notification received by the other party that strict performance will be required of any term waived, unless the retraction would be unjust in view of a material change of position in reliance on the waiver. [1989 c.676 §17]

 

      72A.2090 Lessee under finance lease as beneficiary of supply contract. (1) The benefit of a supplier’s promises to the lessor under the supply contract and of all warranties, whether express or implied, including those of any third party provided in connection with or as part of the supply contract, extends to the lessee to the extent of the lessee’s leasehold interest under a finance lease related to the supply contract, but is subject to the terms of the warranty and of the supply contract and all defenses or claims arising therefrom.

      (2) The extension of the benefit of a supplier’s promises and of warranties to the lessee under subsection (1) of this section does not:

      (a) Modify the rights and obligations of the parties to the supply contract, whether arising therefrom or otherwise; or

      (b) Impose any duty or liability under the supply contract on the lessee.

      (3) Any modification or rescission of the supply contract by the supplier and the lessor is effective between the supplier and the lessee unless, before the modification or rescission, the supplier has received notice that the lessee has entered into a finance lease related to the supply contract. If the modification or rescission is effective between the supplier and the lessee, the lessor is deemed to have assumed, in addition to the obligations of the lessor to the lessee under the lease contract, promises of the supplier to the lessor and warranties that were so modified or rescinded as they existed and were available to the lessee before modification or rescission.

      (4) In addition to the extension of the benefit of the supplier’s promises and of warranties to the lessee under subsection (1) of this section, the lessee retains all rights that the lessee may have against the supplier that arise from an agreement between the lessee and the supplier or under other law. [1989 c.676 §18; 1993 c.646 §3]

 

      72A.2100 Express warranties. (1) Express warranties by the lessor are created as follows:

      (a) Any affirmation of fact or promise made by the lessor to the lessee which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods will conform to the affirmation or promise.

      (b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods will conform to the description.

      (c) Any sample or model that is made part of the basis of the bargain creates an express warranty that the whole of the goods will conform to the sample or model.

      (2) It is not necessary to the creation of an express warranty that the lessor use formal words, such as “warrant” or “guarantee,” or that the lessor have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the lessor’s opinion or commendation of the goods does not create a warranty. [1989 c.676 §19]

 

      72A.2110 Warranties against interference and against infringement; lessee’s obligation against infringement. (1) There is in a lease contract a warranty that for the lease term no person holds a claim to or interest in the goods that arose from an act or omission of the lessor, other than a claim by way of infringement or the like, which will interfere with the lessee’s enjoyment of its leasehold interest.

      (2) Except in a finance lease there is in a lease contract by a lessor who is a merchant regularly dealing in goods of the kind a warranty that the goods are delivered free of the rightful claim of any person by way of infringement or the like.

      (3) A lessee who furnishes specifications to a lessor or a supplier shall hold the lessor and the supplier harmless against any claim by way of infringement or the like that arises out of compliance with the specifications. [1989 c.676 §20]

 

      72A.2120 Implied warranty of merchantability. (1) Except in a finance lease, a warranty that the goods will be merchantable is implied in a lease contract if the lessor is a merchant with respect to goods of that kind.

      (2) Goods to be merchantable must at least:

      (a) Pass without objection in the trade under the description in the lease agreement;

      (b) In the case of fungible goods, be of fair average quality within the description;

      (c) Be fit for the ordinary purposes for which goods of that type are used;

      (d) Run, within the variation permitted by the lease agreement, of even kind, quality and quantity within each unit and among all units involved;

      (e) Be adequately contained, packaged and labeled as the lease agreement may require; and

      (f) Conform to any promises or affirmations of fact made on the container or label.

      (3) Other implied warranties may arise from course of dealing or usage of trade. [1989 c.676 §21]

 

      72A.2130 Implied warranty of fitness for particular purpose. Except in a finance lease, if the lessor at the time the lease contract is made has reason to know of any particular purpose for which the goods are required and that the lessee is relying on the lessor’s skill or judgment to select or furnish suitable goods, there is in the lease contract an implied warranty that the goods will be fit for that purpose. [1989 c.676 §22]

 

      72A.2140 Exclusion or modification of warranties. (1) Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit a warranty must be construed wherever reasonable as consistent with each other; but, subject to the provisions of ORS 72A.2020 on parol or extrinsic evidence, negation or limitation is inoperative to the extent that the construction is unreasonable.

      (2) Subject to subsection (3) of this section, to exclude or modify the implied warranty of merchantability or any part of it, the language must mention “merchantability,” be by a writing and be conspicuous. Subject to subsection (3) of this section, to exclude or modify any implied warranty of fitness the exclusion must be by a writing and be conspicuous. Language to exclude all implied warranties of fitness is sufficient if it is in writing, is conspicuous and states, for example, “There is no warranty that the goods will be fit for a particular purpose.”

      (3) Notwithstanding subsection (2) of this section, but subject to subsection (4) of this section:

      (a) Unless the circumstances indicate otherwise, all implied warranties are excluded by the expressions “as is,” or “with all faults,” or by other language that in common understanding calls the lessee’s attention to the exclusion of warranties and makes plain that there is no implied warranty, if in writing and conspicuous;

      (b) If the lessee before entering into the lease contract has examined the goods or the sample or model as fully as desired or has refused to examine the goods, there is no implied warranty with regard to defects that an examination ought in the circumstances to have revealed; and

      (c) An implied warranty may also be excluded or modified by course of dealing, course of performance or usage of trade.

      (4) To exclude or modify a warranty against interference or against infringement as provided in ORS 72A.2110 or any part of it, the language must be specific, be by a writing, and be conspicuous, unless the circumstances, including course of performance, course of dealing or usage of trade, give the lessee reason to know that the goods are being leased subject to a claim or interest of any person. [1989 c.676 §23]

 

      72A.2150 Cumulation and conflict of warranties express or implied. Warranties, whether express or implied, must be construed as consistent with each other and as cumulative, but if that construction is unreasonable, the intention of the parties determines which warranty is dominant. In ascertaining that intention, the following rules apply:

      (1) Exact or technical specifications displace an inconsistent sample or model or general language of description.

      (2) A sample from an existing bulk displaces inconsistent general language of description.

      (3) Express warranties displace inconsistent implied warranties other than an implied warranty of fitness for a particular purpose. [1989 c.676 §24]

 

      72A.2160 Third-party beneficiaries of express and implied warranties. A warranty to or for the benefit of a lessee under this chapter, whether express or implied, extends to any natural person who is in the family or household of the lessee or who is a guest in the lessee’s home if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty. This section does not displace principles of law and equity that extend a warranty to or for the benefit of a lessee to other persons. The operation of this section may not be excluded, modified or limited, but an exclusion, modification or limitation of the warranty, including any with respect to rights and remedies, effective against the lessee is also effective against any beneficiary designated under this section. [1989 c.676 §25]

 

      72A.2170 Identification. Identification of goods as goods to which a lease contract refers may be made at any time and in any manner explicitly agreed to by the parties. In the absence of explicit agreement, identification occurs:

      (1) When the lease contract is made if the lease contract is for a lease of goods that are existing and identified;

      (2) When the goods are shipped, marked or otherwise designated by the lessor as goods to which the lease contract refers, if the lease contract is for a lease of goods that are not existing and identified; or

      (3) When the young are conceived, if the lease contract is for a lease of unborn young of animals. [1989 c.676 §26]

 

      72A.2180 Insurance and proceeds. (1) A lessee obtains an insurable interest when existing goods are identified to the lease contract even though the goods identified are nonconforming and the lessee has an option to reject them.

      (2) If a lessee has an insurable interest only by reason of the lessor’s identification of the goods, the lessor, until default or insolvency or notification to the lessee that identification is final, may substitute other goods for those identified.

      (3) Notwithstanding a lessee’s insurable interest under subsections (1) and (2) of this section, the lessor retains an insurable interest until an option to buy has been exercised by the lessee and risk of loss has passed to the lessee.

      (4) Nothing in this section impairs any insurable interest recognized under any other statute or rule of law.

      (5) The parties by agreement may determine that one or more parties have an obligation to obtain and pay for insurance covering the goods and by agreement may determine the beneficiary of the proceeds of the insurance. [1989 c.676 §27]

 

      72A.2190 Risk of loss. (1) Except in the case of a finance lease, risk of loss is retained by the lessor and does not pass to the lessee. In the case of a finance lease, risk of loss passes to the lessee.

      (2) Subject to the provisions of ORS 72A.2200 on the effect of default on risk of loss, if risk of loss is to pass to the lessee and the time of passage is not stated, the following rules apply:

      (a) If the lease contract requires or authorizes the goods to be shipped by carrier, and it does not require delivery at a particular destination, the risk of loss passes to the lessee when the goods are duly delivered to the carrier; but if it does require delivery at a particular destination and the goods are there duly tendered while in the possession of the carrier, the risk of loss passes to the lessee when the goods are there duly so tendered as to enable the lessee to take delivery.

      (b) If the goods are held by a bailee to be delivered without being moved, the risk of loss passes to the lessee on acknowledgment by the bailee of the lessee’s right to possession of the goods.

      (c) In any case not described in paragraph (a) or (b) of this subsection, the risk of loss passes to the lessee on the lessee’s receipt of the goods if the lessor, or, in the case of a finance lease, the supplier, is a merchant, otherwise the risk passes to the lessee on tender of delivery. [1989 c.676 §28]

 

      72A.2200 Effect of default on risk of loss. (1) Where risk of loss is to pass to the lessee and the time of passage is not stated:

      (a) If a tender or delivery of goods so fails to conform to the lease contract as to give a right of rejection, the risk of their loss remains with the lessor or, in the case of a finance lease, the supplier, until cure or acceptance.

      (b) If the lessee rightfully revokes acceptance, the lessee, to the extent of any deficiency in the lessee’s effective insurance coverage, may treat the risk of loss as having remained with the lessor from the beginning.

      (2) Whether or not risk of loss is to pass to the lessee, if the lessee as to conforming goods already identified to a lease contract repudiates or is otherwise in default under the lease contract, the lessor, or, in the case of a finance lease, the supplier, to the extent of any deficiency in the lessor’s or supplier’s effective insurance coverage may treat the risk of loss as resting on the lessee for a commercially reasonable time. [1989 c.676 §29]

 

      72A.2210 Casualty to identified goods. If a lease contract requires goods identified when the lease contract is made, and the goods suffer casualty without fault of the lessee, the lessor or the supplier before delivery, or the goods suffer casualty before risk of loss passes to the lessee pursuant to the lease agreement or ORS 72A.2190, then:

      (1) If the loss is total, the lease contract is avoided; and

      (2) If the loss is partial or the goods have so deteriorated as to no longer conform to the lease contract, the lessee may nevertheless demand inspection and at the lessee’s option either treat the lease contract as avoided or, except in a finance lease, accept the goods with due allowance from the rent payable for the balance of the lease term for the deterioration or the deficiency in quantity but without further right against the lessor. [1989 c.676 §30]

 

EFFECT OF LEASE CONTRACT

 

      72A.3010 Enforceability of lease contract. Except as otherwise provided in this chapter, a lease contract is effective and enforceable according to its terms between the parties, against purchasers of the goods and against creditors of the parties. [1989 c.676 §31]

 

      72A.3020 Title to and possession of goods. Except as otherwise provided in this chapter, each provision of this chapter applies whether the lessor or a third party has title to the goods, and whether the lessor, the lessee or a third party has possession of the goods, notwithstanding any statute or rule of law that possession or the absence of possession is fraudulent. [1989 c.676 §32]

 

      72A.3030 Alienability of party’s interest under lease contract or of lessor’s residual interest in goods; delegation of performance; transfer of rights. (1) As used in this section, “creation of a security interest” includes the sale of a lease contract that is subject to ORS 79.0109 (1)(c).

      (2) Except as provided in subsection (3) of this section and ORS 79.0407, a provision in a lease agreement that prohibits the voluntary or involuntary transfer, including a transfer by sale, sublease, creation or enforcement of a security interest, or attachment, levy or other judicial process, of an interest of a party under the lease contract or of the lessor’s residual interest in the goods, or that makes such a transfer an event of default, gives rise to the rights and remedies provided in subsection (4) of this section, but a transfer that is prohibited or is an event of default under the lease agreement is otherwise effective.

      (3) A provision in a lease agreement is not enforceable if the provision prohibits a transfer of a right to damages for default with respect to the whole lease contract or of a right to payment arising out of the transferor’s due performance of the transferor’s entire obligation or makes such a transfer an event of default. A transfer that is not enforceable under this section is not a transfer that materially impairs the prospect of obtaining return performance by, materially changes the duty of, or materially increases the burden or risk imposed on, the other party to the lease contract under subsection (4) of this section.

      (4) Subject to subsection (3) of this section and ORS 79.0407:

      (a) If a transfer is made that is made an event of default under a lease agreement, the party to the lease contract not making the transfer has the rights and remedies described in ORS 72A.5010 (2), unless the party waives the default or otherwise agrees; or

      (b) If paragraph (a) of this subsection is not applicable and a transfer is made that is prohibited under a lease agreement or that materially impairs the prospect of obtaining return performance by, materially changes the duty of, or materially increases the burden or risk imposed on, the other party to the lease contract, then, unless the party not making the transfer agrees at any time to the transfer in the lease contract or otherwise, and except as limited by contract:

      (A) The transferor is liable to the party not making the transfer for damages caused by the transfer to the extent that the damages could not reasonably be prevented by the party not making the transfer; and

      (B) A court having jurisdiction may grant other appropriate relief, including cancellation of the lease contract or an injunction.

      (5) A transfer of “the lease” or of “all my rights under the lease” or a transfer in similar general terms is a transfer of rights, and unless the language or the circumstances indicate the contrary, as in a transfer for security, the transfer is a delegation of duties by the transferor to the transferee. Acceptance by the transferee constitutes a promise by the transferee to perform those duties. The promise is enforceable by either the transferor or the other party to the lease contract.

      (6) Unless otherwise agreed by the lessor and the lessee, a delegation of performance does not relieve the transferor as against the other party of any duty to perform or of any liability for default.

      (7) In a consumer lease, to prohibit the transfer of an interest of a party under the lease contract or to make a transfer an event of default, the language must be specific, by a writing, and conspicuous. [1989 c.676 §33; 1993 c.646 §4; 2001 c.445 §142]

 

      72A.3040 Subsequent lease of goods by lessor. (1) Subject to ORS 72A.3030, a subsequent lessee from a lessor of goods under an existing lease contract obtains, to the extent of the leasehold interest transferred, the leasehold interest in the goods that the lessor had or had power to transfer, and except as provided in subsection (2) of this section and ORS 72A.5270 (4), takes subject to the existing lease contract. A lessor with voidable title has power to transfer a good leasehold interest to a good faith subsequent lessee for value, but only to the extent set forth in the preceding sentence. If goods have been delivered under a transaction of purchase, the lessor has that power even though:

      (a) The lessor’s transferor was deceived as to the identity of the lessor;

      (b) The delivery was in exchange for a check which is later dishonored;

      (c) It was agreed that the transaction was to be a “cash sale”; or

      (d) The delivery was procured through fraud punishable as larcenous under the criminal law.

      (2) A subsequent lessee in the ordinary course of business from a lessor who is a merchant dealing in goods of that kind to whom the goods were entrusted by the existing lessee of that lessor before the interest of the subsequent lessee became enforceable against that lessor obtains, to the extent of the leasehold interest transferred, all of that lessor’s and the existing lessee’s rights to the goods, and takes free of the existing lease contract.

      (3) A subsequent lessee from the lessor of goods that are subject to an existing lease contract and are covered by a certificate of title issued under a statute of this state or of another jurisdiction takes no greater rights than those provided both by this section and by the certificate of title statute. [1989 c.676 §34; 1993 c.646 §5]

 

      72A.3050 Sale or sublease of goods by lessee. (1) Subject to the provisions of ORS 72A.3030, a buyer or sublessee from the lessee of goods under an existing lease contract obtains, to the extent of the interest transferred, the leasehold interest in the goods that the lessee had or had power to transfer, and except as provided in subsection (2) of this section and ORS 72A.5110 (4), takes subject to the existing lease contract. A lessee with a voidable leasehold interest has power to transfer a good leasehold interest to a good faith buyer for value or a good faith sublessee for value, but only to the extent set forth in the preceding sentence. When goods have been delivered under a transaction of lease the lessee has that power even though:

      (a) The lessor was deceived as to the identity of the lessee;

      (b) The delivery was in exchange for a check which is later dishonored; or

      (c) The delivery was procured through fraud punishable as larcenous under the criminal law.

      (2) A buyer in the ordinary course of business or a sublessee in the ordinary course of business from a lessee who is a merchant dealing in goods of that kind to whom the goods were entrusted by the lessor obtains, to the extent of the interest transferred, all of the lessor’s and lessee’s rights to the goods, and takes free of the existing lease contract.

      (3) A buyer or sublessee from the lessee of goods that are subject to an existing lease contract and are covered by a certificate of title issued under a statute of this state or of another jurisdiction takes no greater rights than those provided both by this section and by the certificate of title statute. [1989 c.676 §35]

 

      72A.3060 Priority of certain liens arising by operation of law. If a person in the ordinary course of the person’s business furnishes services or materials with respect to goods subject to a lease contract, a lien upon those goods in the possession of that person given by statute or rule of law for those materials or services takes priority over any interest of the lessor or lessee under the lease contract or this chapter unless the lien is created by statute and the statute provides otherwise or unless the lien is created by rule of law and the rule of law provides otherwise. [1989 c.676 §36]

 

      72A.3070 Priority of liens arising by attachment or levy on goods; priority of certain security interests in goods. (1) Except as otherwise provided in ORS 72A.3060, a creditor of a lessee takes subject to the lease contract.

      (2) Except as otherwise provided in subsection (3) of this section and in ORS 72A.3060 and 72A.3080, a creditor of a lessor takes subject to the lease contract unless the creditor holds a lien that attached to the goods before the lease contract became enforceable.

      (3) Except as otherwise provided in ORS 79.0317, 79.0321 and 79.0323, a lessee takes a leasehold interest subject to a security interest held by a creditor of the lessor. [1989 c.676 §37; 1993 c.646 §6; 2001 c.445 §143]

 

      72A.3080 Special rights of creditors. (1) A creditor of a lessor in possession of goods subject to a lease contract may treat the lease contract as void if as against the creditor retention of possession by the lessor is fraudulent under any statute or rule of law, but retention of possession in good faith and current course of trade by the lessor for a commercially reasonable time after the lease contract becomes enforceable is not fraudulent.

      (2) Nothing in this chapter impairs the rights of creditors of a lessor if the lease contract:

      (a) Becomes enforceable, not in current course of trade but in satisfaction of or as security for a preexisting claim for money, security or the like; and

      (b) Is made under circumstances which under any statute or rule of law apart from this chapter would constitute the transaction a fraudulent transfer or voidable preference.

      (3) A creditor of a seller may treat a sale or an identification of goods to a contract for sale as void if as against the creditor retention of possession by the seller is fraudulent under any statute or rule of law, but retention of possession of the goods pursuant to a lease contract entered into by the seller as lessee and the buyer as lessor in connection with the sale or identification of the goods is not fraudulent if the buyer bought for value and in good faith. [1989 c.676 §38]

 

      72A.3090 Lessor’s and lessee’s rights when goods become fixtures. (1) As used in this section:

      (a) Goods are “fixtures” when they become so related to particular real estate that an interest in them arises under real estate law;

      (b) A “fixture filing” is the filing, in the office where a record of a mortgage on the real estate would be filed or recorded, of a financing statement covering goods that are or are to become fixtures and conforming to the requirements of ORS 79.0502 (1) and (2);

      (c) A lease is a “purchase money lease” unless the lessee has possession or use of the goods or the right to possession or use of the goods before the lease agreement is enforceable;

      (d) A mortgage is a “construction mortgage” to the extent it secures an obligation incurred for the construction of an improvement on land including the acquisition cost of the land, if the recorded writing so indicates; and

      (e) “Encumbrance” includes real estate mortgages and other liens on real estate and all other rights in real estate that are not ownership interests.

      (2) Under this chapter a lease may be of goods that are fixtures or may continue in goods that become fixtures, but no lease exists under this chapter of ordinary building materials incorporated into an improvement on land.

      (3) This chapter does not prevent creation of a lease of fixtures pursuant to real estate law.

      (4) The perfected interest of a lessor of fixtures has priority over a conflicting interest of an encumbrancer or owner of the real estate if:

      (a) The lease is a purchase money lease, the conflicting interest of the encumbrancer or owner arises before the goods become fixtures, the interest of the lessor is perfected by a fixture filing before the goods become fixtures or within 20 days thereafter, and the lessee has an interest of record in the real estate or is in possession of the real estate; or

      (b) The interest of the lessor is perfected by a fixture filing before the interest of the encumbrancer or owner is of record, the lessor’s interest has priority over any conflicting interest of a predecessor in title of the encumbrancer or owner, and the lessee has an interest of record in the real estate or is in possession of the real estate.

      (5) The interest of a lessor of fixtures, whether or not perfected, has priority over the conflicting interest of an encumbrancer or owner of the real estate if:

      (a) The fixtures are readily removable factory or office machines, readily removable equipment that is not primarily used or leased for use in the operation of the real estate, or readily removable replacements of domestic appliances that are goods subject to a consumer lease, and before the goods become fixtures the lease contract is enforceable;

      (b) The conflicting interest is a lien on the real estate obtained by legal or equitable proceedings after the lease contract is enforceable;

      (c) The encumbrancer or owner has consented in writing to the lease or has disclaimed an interest in the goods as fixtures; or

      (d) The lessee has a right to remove the goods as against the encumbrancer or owner. If the lessee’s right to remove terminates, the priority of the interest of the lessor continues for a reasonable time.

      (6) Notwithstanding subsection (4)(a) of this section but otherwise subject to subsections (4) and (5) of this section, the interest of a lessor of fixtures, including the lessor’s residual interest, is subordinate to the conflicting interest of an encumbrancer of the real estate under a construction mortgage recorded before the goods become fixtures if the goods become fixtures before the completion of the construction. To the extent given to refinance a construction mortgage, the conflicting interest of an encumbrancer of the real estate under a mortgage has this priority to the same extent as the encumbrancer of the real estate under the construction mortgage.

      (7) In cases not within subsections (1) to (6) of this section, priority between the interest of a lessor of fixtures, including the lessor’s residual interest, and the conflicting interest of an encumbrancer or owner of the real estate who is not the lessee is determined by the priority rules governing conflicting interests in real estate.

      (8) If the interest of a lessor of fixtures, including the lessor’s residual interest, has priority over all conflicting interests of all owners and encumbrancers of the real estate, the lessor or the lessee may on default, expiration, termination or cancellation of the lease agreement, but subject to the lease agreement and this chapter, or if necessary to enforce the lessor’s or lessee’s other rights and remedies under this chapter, remove the goods from the real estate, free and clear of all conflicting interests of all owners and encumbrancers of the real estate, but the lessor or lessee must reimburse any encumbrancer or owner of the real estate who is not the lessee and who has not otherwise agreed for the cost of repair of any physical injury, but not for any diminution in value of the real estate caused by the absence of the goods removed or by any necessity of replacing them. A person entitled to reimbursement may refuse permission to remove until the party seeking removal gives adequate security for the performance of this obligation.

      (9) Even though the lease agreement does not create a security interest, the interest of a lessor of fixtures, including the lessor’s residual interest, is perfected by filing a financing statement as a fixture filing for leased goods that are or are to become fixtures in accordance with the relevant provisions of ORS chapter 79. [1989 c.676 §39; 1993 c.646 §7; 1999 c.645 §2; 2001 c.445 §144]

 

      72A.3095 Fixture filing recorded and indexed as mortgage. (1) A financing statement filed as a fixture filing under ORS 72A.3090 shall be recorded and indexed as a mortgage on the real estate.

      (2) ORS 79.0523 does not apply to a financing statement recorded and indexed as a mortgage under this section. [1999 c.715 §7; 2001 c.445 §145]

 

      72A.3100 Lessor’s and lessee’s rights when goods become accessions. (1) Goods are “accessions” when they are installed in or affixed to other goods.

      (2) The interest of a lessor or a lessee under a lease contract entered into before the goods became accessions is superior to all interests in the whole except as stated in subsection (4) of this section.

      (3) The interest of a lessor or a lessee under a lease contract entered into at the time or after the goods became accessions is superior to all subsequently acquired interests in the whole except as stated in subsection (4) of this section but is subordinate to interests in the whole existing at the time the lease contract was made unless the holders of such interests in the whole have in writing consented to the lease or disclaimed an interest in the goods as part of the whole.

      (4) The interest of a lessor or a lessee under a lease contract described in subsection (2) or (3) of this section is subordinate to the interest of:

      (a) A buyer in the ordinary course of business or a lessee in the ordinary course of business of any interest in the whole acquired after the goods became accessions; or

      (b) A creditor with a security interest in the whole perfected before the lease contract was made to the extent that the creditor makes subsequent advances without knowledge of the lease contract.

      (5) When under subsections (2) or (3) and (4) of this section, a lessor or a lessee of accessions holds an interest that is superior to all interests in the whole, the lessor or the lessee may on default, expiration, termination or cancellation of the lease contract by the other party but subject to the provisions of the lease contract and this chapter, or if necessary to enforce the lessor’s or lessee’s other rights and remedies under this chapter, remove the goods from the whole, free and clear of all interests in the whole, but the lessor or lessee must reimburse any holder of an interest in the whole who is not the lessee and who has not otherwise agreed for the cost of repair of any physical injury but not for any diminution in value of the whole caused by the absence of the goods removed or by any necessity for replacing them. A person entitled to reimbursement may refuse permission to remove until the party seeking removal gives adequate security for the performance of this obligation. [1989 c.676 §40]

 

PERFORMANCE OF LEASE CONTRACT: REPUDIATED, SUBSTITUTED AND EXCUSED

 

      72A.4010 Insecurity; adequate assurance of performance. (1) A lease contract imposes an obligation on each party that the other’s expectation of receiving due performance will not be impaired.

      (2) If reasonable grounds for insecurity arise with respect to the performance of either party, the insecure party may demand in writing adequate assurance of due performance. Until the insecure party receives that assurance, if commercially reasonable, the insecure party may suspend any performance for which the insecure party has not already received the agreed return.

      (3) A repudiation of the lease contract occurs if assurance of due performance adequate under the circumstances of the particular case is not provided to the insecure party within a reasonable time, not to exceed 30 days after receipt of a demand by the other party.

      (4) Between merchants, the reasonableness of grounds for insecurity and the adequacy of any assurance offered must be determined according to commercial standards.

      (5) Acceptance of any nonconforming delivery or payment does not prejudice the aggrieved party’s right to demand adequate assurance of future performance. [1989 c.676 §41]

 

      72A.4020 Anticipatory repudiation. If either party repudiates a lease contract with respect to a performance not yet due under the lease contract, the loss of which performance will substantially impair the value of the lease contract to the other, the aggrieved party may:

      (1) For a commercially reasonable time, await retraction of repudiation and performance by the repudiating party;

      (2) Make demand pursuant to ORS 72A.4010 and await assurance of future performance adequate under the circumstances of the particular case; or

      (3) Resort to any right or remedy upon default under the lease contract or this chapter, even though the aggrieved party has notified the repudiating party that the aggrieved party would await the repudiating party’s performance and assurance and has urged retraction. In addition, whether or not the aggrieved party is pursuing one of the foregoing remedies, the aggrieved party may suspend performance or, if the aggrieved party is the lessor, proceed in accordance with the provisions of ORS 72A.5240 on the lessor’s right to identify goods to the lease contract notwithstanding default or to salvage unfinished goods. [1989 c.676 §42]

 

      72A.4030 Retraction of anticipatory repudiation. (1) Until the repudiating party’s next performance is due, the repudiating party can retract the repudiation unless, since the repudiation, the aggrieved party has canceled the lease contract or materially changed the aggrieved party’s position or otherwise indicated that the aggrieved party considers the repudiation final.

      (2) Retraction may be by any method that clearly indicates to the aggrieved party that the repudiating party intends to perform under the lease contract and includes any assurance demanded under ORS 72A.4010.

      (3) Retraction reinstates a repudiating party’s rights under a lease contract with due excuse and allowance to the aggrieved party for any delay occasioned by the repudiation. [1989 c.676 §43]

 

      72A.4040 Substituted performance. (1) If without fault of the lessee, the lessor and the supplier, the agreed berthing, loading or unloading facilities fail or the agreed type of carrier becomes unavailable or the agreed manner of delivery otherwise becomes commercially impracticable, but a commercially reasonable substitute is available, the substitute performance must be tendered and accepted.

      (2) If the agreed means or manner of payment fails because of domestic or foreign governmental regulation:

      (a) The lessor may withhold or stop delivery or cause the supplier to withhold or stop delivery unless the lessee provides a means or manner of payment that is commercially a substantial equivalent; and

      (b) If delivery has already been taken, payment by the means or in the manner provided by the regulation discharges the lessee’s obligation unless the regulation is discriminatory, oppressive or predatory. [1989 c.676 §44]

 

      72A.4050 Excused performance. Subject to ORS 72A.4040 on substituted performance, the following rules apply:

      (1) Delay in delivery or nondelivery in whole or in part by a lessor or a supplier who complies with subsections (2) and (3) of this section is not a default under the lease contract if performance as agreed has been made impracticable by the occurrence of a contingency the nonoccurrence of which was a basic assumption on which the lease contract was made or by compliance in good faith with any applicable foreign or domestic governmental regulation or order, whether or not the regulation or order later proves to be invalid.

      (2) If the causes mentioned in subsection (1) of this section affect only part of the lessor’s or the supplier’s capacity to perform, the lessor or supplier shall allocate production and deliveries among the lessor’s or supplier’s customers but at the lessor’s or supplier’s option may include regular customers not then under contract for sale or lease as well as the lessor or supplier’s own requirements for further manufacture. The lessor or supplier may so allocate in any manner that is fair and reasonable.

      (3) The lessor seasonably shall notify the lessee and in the case of a finance lease the supplier seasonably shall notify the lessor and the lessee, if known, that there will be delay or nondelivery and, if allocation is required under subsection (2) of this section, of the estimated quota thus made available for the lessee. [1989 c.676 §45]

 

      72A.4060 Procedure on excused performance. (1) If the lessee receives notification of a material or indefinite delay or an allocation justified under ORS 72A.4050, the lessee may by written notification to the lessor as to any goods involved, and with respect to all of the goods if under an installment lease contract the value of the whole lease contract is substantially impaired as provided under ORS 72A.5100:

      (a) Terminate the lease contract under ORS 72A.5050; or

      (b) Except in a finance lease, modify the lease contract by accepting the available quota in substitution, with due allowance from the rent payable for the balance of the lease term for the deficiency but without further right against the lessor.

      (2) If, after receipt of a notification from the lessor under ORS 72A.4050, the lessee fails so to modify the lease agreement within a reasonable time not exceeding 30 days, the lease contract lapses with respect to any deliveries affected. [1989 c.676 §46]

 

      72A.4070 Irrevocable promises; finance leases. (1) In the case of a finance lease that is not a consumer lease the lessee’s promises under the lease contract become irrevocable and independent upon the lessee’s acceptance of the goods.

      (2) A promise that has become irrevocable and independent under subsection (1) of this section:

      (a) Is effective and enforceable between the parties, and by or against third parties including assignees of the parties; and

      (b) Is not subject to cancellation, termination, modification, repudiation, excuse or substitution without the consent of the party to whom the promise runs.

      (3) This section shall not affect the validity under any other law of a covenant in any lease contract making the lessee’s promises irrevocable and independent upon the lessee’s acceptance of the goods. [1989 c.676 §47]

 

DEFAULT

 

      72A.5010 Default; procedure. (1) Whether the lessor or the lessee is in default under a lease contract is determined by the lease agreement and this chapter.

      (2) If the lessor or the lessee is in default under the lease contract, the party seeking enforcement has rights and remedies as provided in this chapter and, except as limited by this chapter, as provided in the lease agreement.

      (3) If the lessor or the lessee is in default under the lease contract, the party seeking enforcement may reduce the party’s claim to judgment, or otherwise enforce the lease contract by self-help or any available judicial procedure or nonjudicial procedure, including administrative proceeding, arbitration, or the like, in accordance with this chapter.

      (4) Except as otherwise provided in ORS 71.1060, this chapter or the lease agreement, the rights and remedies referred to in subsections (2) and (3) of this section are cumulative.

      (5) If the lease agreement covers both real property and goods, the party seeking enforcement may proceed under ORS 72A.5010 to 72A.5310 as to the goods, or under other applicable law as to both the real property and the goods in accordance with that party’s rights and remedies in respect of the real property, in which case ORS 72A.5010 to 72A.5310 do not apply. [1989 c.676 §48; 1993 c.646 §8]

 

      72A.5020 Notice after default. Except as otherwise provided in this chapter or the lease agreement, the lessor or lessee in default under the lease contract is not entitled to notice of default or notice of enforcement from the other party to the lease agreement. [1989 c.676 §49]

 

      72A.5030 Modification or impairment of rights and remedies. (1) Except as otherwise provided in this chapter, the lease agreement may include rights and remedies for default in addition to or in substitution for those provided in this chapter and may limit or alter the measure of damages recoverable under this chapter.

      (2) Resort to a remedy provided under this chapter or in the lease agreement is optional unless the remedy is expressly agreed to be exclusive. If circumstances cause an exclusive or limited remedy to fail of its essential purpose, or provision for an exclusive remedy is unconscionable, remedy may be had as provided in this chapter.

      (3) Consequential damages may be liquidated under ORS 72A.5040, or may otherwise be limited, altered or excluded unless the limitation, alteration or exclusion is unconscionable. Limitation, alteration or exclusion of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation, alteration or exclusion of damages where the loss is commercial is not prima facie unconscionable.

      (4) Rights and remedies on default by the lessor or the lessee with respect to any obligation or promise collateral or ancillary to the lease contract are not impaired by this chapter. [1989 c.676 §50; 1993 c.646 §9]

 

      72A.5040 Liquidation of damages. (1) Damages payable by either party for default, or any other act or omission, including indemnity for loss or diminution of anticipated tax benefits or loss or damage to the lessor’s residual interest, may be liquidated in the lease agreement but only at an amount or by a formula that is reasonable in light of the then anticipated harm caused by the default or other act or omission. A provision in the lease agreement which states that damages in the event of the lessee’s default and the lessor’s sale of the goods include, in addition to costs payable to third parties, any past due amounts plus the sum of the present value of future rentals, the lessor’s costs of enforcing the lease, the lessor’s reasonably predictable residual at expiration, reasonable compensation for any loss of tax benefits, or an equivalent amount, and any other damages suffered or to be suffered by the lessor because of the lessee’s default, less the net proceeds of sale, is reasonable.

      (2) If the lease agreement provides for liquidation of damages, and such provision does not comply with subsection (1) of this section, or such provision is an exclusive or limited remedy that circumstances cause to fail of its essential purpose, remedy may be had as provided in this chapter.

      (3) If the lessor justifiably withholds or stops delivery of goods because of the lessee’s default or insolvency under ORS 72A.5250 or 72A.5260, the lessee is entitled to restitution of any amount by which the sum of the lessee’s payments exceeds:

      (a) The amount to which the lessor is entitled by virtue of terms liquidating the lessor’s damages in accordance with subsection (1) of this section; or

      (b) In the absence of those terms, 20 percent of the then present value of the total rent the lessee was obligated to pay for the balance of the lease term, or, in the case of a consumer lease, the lesser of such amount or $500.

      (4) A lessee’s right to restitution under subsection (3) of this section is subject to offset to the extent the lessor establishes:

      (a) A right to recover damages under the provisions of this chapter other than subsection (1) of this section; and

      (b) The amount or value of any benefits received by the lessee directly or indirectly by reason of the lease contract. [1989 c.676 §51]

 

      72A.5050 Cancellation and termination and effect of cancellation, termination, rescission or fraud on rights and remedies. (1) On cancellation of the lease contract, all obligations that are still executory on both sides are discharged, but any right based on prior default or performance survives, and the canceling party also retains any remedy for default of the whole lease contract or any unperformed balance.

      (2) On termination of the lease contract, all obligations that are still executory on both sides are discharged but any right based on prior default or performance survives.

      (3) Unless the contrary intention clearly appears, expressions of “cancellation,” “rescission” or the like of the lease contract may not be construed as a renunciation or discharge of any claim in damages for an antecedent default.

      (4) Rights and remedies for material misrepresentation or fraud include all rights and remedies available under this chapter for default.

      (5) Neither rescission nor a claim for rescission of the lease contract nor rejection or return of the goods may bar or be considered inconsistent with a claim for damages or other right or remedy. [1989 c.676 §52]

 

      72A.5060 Statute of limitations. (1) An action for default under a lease contract, including breach of warranty or indemnity, must be commenced within four years after the cause of action accrued. By the original lease contract the parties may reduce the period of limitation to not less than two years.

      (2) A cause of action for default accrues when the act or omission on which the default or breach of warranty is based is or should have been discovered by the aggrieved party, or when the default occurs, whichever is later. A cause of action for indemnity accrues when the act or omission on which the claim for indemnity is based is or should have been discovered by the indemnified party, whichever is later.

      (3) If an action commenced within the time limited by subsection (1) of this section is so terminated as to leave available a remedy by another action for the same default or breach of warranty or indemnity, the other action may be commenced after the expiration of the time limited and within six months after the termination of the first action unless the termination resulted from voluntary discontinuance or from dismissal for failure or neglect to prosecute.

      (4) This section does not alter the law on tolling of the statute of limitations nor does it apply to causes of action that have accrued before this chapter becomes effective. [1989 c.676 §53]

 

      72A.5070 Proof of market rent; time and place. (1) Damages based on market rent under ORS 72A.5190 or 72A.5280 are determined according to the rent for the use of the goods concerned for a lease term identical to the remaining lease term of the original lease agreement and prevailing at the time of the default.

      (2) If evidence of rent for the use of the goods concerned for a lease term identical to the remaining lease term of the original lease agreement and prevailing at the times or places described in this chapter is not readily available, the rent prevailing within any reasonable time before or after the time described or at any other place or for a different lease term which in commercial judgment or under usage of trade would serve as a reasonable substitute for the one described may be used, making any proper allowance for the difference, including the cost of transporting the goods to or from the other place.

      (3) Evidence of a relevant rent prevailing at a time or place or for a lease term other than the one described in this chapter offered by one party is not admissible unless and until one party has given the other party notice the court finds sufficient to prevent unfair surprise.

      (4) If the prevailing rent or value of any goods regularly leased in any established market is in issue, reports in official publications, trade journals, newspapers or periodicals of general circulation published as the reports of that market are admissible in evidence. The circumstances of the preparation of the report may be shown to affect its weight but not its admissibility. [1989 c.676 §54]

 

      72A.5080 Lessee’s remedies. (1) If a lessor fails to deliver the goods in conformity to the lease contract as provided in ORS 72A.5090 or repudiates the lease contract as provided in ORS 72A.4020, or a lessee rightfully rejects the goods as provided in ORS 72A.5090 or justifiably revokes acceptance of the goods as provided in ORS 72A.5170, then with respect to any goods involved, and with respect to all of the goods if under an installment lease contract the value of the whole lease contract is substantially impaired as provided in ORS 72A.5100, the lessor is in default under the lease contract and the lessee may:

      (a) Cancel the lease contract under ORS 72A.5050;

      (b) Recover so much of the rent and security as has been paid and is just under the circumstances;

      (c) Cover and recover damages as to all goods affected whether or not they have been identified to the lease contract under ORS 72A.5180 and 72A.5200, or recover damages for nondelivery under ORS 72A.5190 and 72A.5200; or

      (d) Exercise any other rights or pursue any other remedies provided in the lease contract.

      (2) If a lessor fails to deliver the goods in conformity to the lease contract or repudiates the lease contract, the lessee may also:

      (a) If the goods have been identified, recover them under ORS 72A.5220; or

      (b) In a proper case, obtain specific performance or replevy the goods under ORS 72A.5210.

      (3) If a lessor is otherwise in default under a lease contract, the lessee may exercise the rights and pursue the remedies provided in the lease contract, which may include a right to cancel the lease, and in ORS 72A.5190 (3).

      (4) If a lessor has breached a warranty, whether express or implied, the lessee may recover damages under ORS 72A.5190.

      (5) On rightful rejection or justifiable revocation of acceptance, a lessee has a security interest in goods in the lessee’s possession or control for any rent and security that has been paid and any expenses reasonably incurred in their inspection, receipt, transportation, care and custody and may hold those goods and dispose of them in good faith and in a commercially reasonable manner, subject to ORS 72A.5270.

      (6) Subject to the provisions of ORS 72A.4070, a lessee, on notifying the lessor of the lessee’s intention to do so, may deduct all or any part of the damages resulting from any default under the lease contract from any part of the rent still due under the same lease contract. [1989 c.676 §55; 1993 c.646 §10]

 

      72A.5090 Lessee’s rights on improper delivery; rightful rejection. (1) Subject to the provisions of ORS 72A.5100 on default in installment lease contracts, if the goods or the tender or delivery fail in any respect to conform to the lease contract, the lessee may reject or accept the goods or accept any commercial unit or units and reject the rest of the goods.

      (2) Rejection of goods is ineffective unless it is within a reasonable time after tender or delivery of the goods and the lessee seasonably notifies the lessor. [1989 c.676 §56]

 

      72A.5100 Installment lease contracts; rejection and default. (1) Under an installment lease contract a lessee may reject any delivery that is nonconforming if the nonconformity substantially impairs the value of that delivery and cannot be cured or the nonconformity is a defect in the required documents. However, if the nonconformity does not fall within subsection (2) of this section and the lessor or the supplier gives adequate assurance of its cure, the lessee must accept that delivery.

      (2) Whenever nonconformity or default with respect to one or more deliveries substantially impairs the value of the installment lease contract as a whole there is a default with respect to the whole. However, the aggrieved party reinstates the installment lease contract as a whole if the aggrieved party accepts a nonconforming delivery without seasonably notifying of cancellation or brings an action with respect only to past deliveries or demands performance as to future deliveries. [1989 c.676 §57]

 

      72A.5110 Merchant lessee’s duties as to rightfully rejected goods. (1) Subject to any security interest of a lessee under ORS 72A.5080, if a lessor or a supplier has no agent or place of business at the market of rejection, a merchant lessee, after rejection of goods in possession or control of the merchant lessee, shall follow any reasonable instructions received from the lessor or the supplier with respect to the goods. In the absence of those instructions, a merchant lessee shall make reasonable efforts to sell, lease or otherwise dispose of the goods for the lessor’s account if they threaten to decline in value speedily. Instructions are not reasonable if on demand indemnity for expenses is not forthcoming.

      (2) If a merchant lessee or any other lessee disposes of goods, the lessee is entitled to reimbursement either from the lessor or the supplier or out of the proceeds for reasonable expenses of caring for and disposing of the goods and, if the expenses include no disposition commission, to such commission as is usual in the trade, or if there is none, to a reasonable sum not exceeding 10 percent of the gross proceeds.

      (3) In complying with this section or ORS 72A.5120, the lessee is held only to good faith. Good faith conduct as described in this section is neither acceptance or conversion nor the basis of an action for damages.

      (4) A purchaser who purchases in good faith from a lessee pursuant to this section or ORS 72A.5120 takes the goods free of any rights of the lessor and the supplier even though the lessee fails to comply with one or more of the requirements of this chapter. [1989 c.676 §58]

 

      72A.5120 Lessee’s duties as to rightfully rejected goods. (1) Except as otherwise provided in ORS 72A.5110 with respect to goods that threaten to decline in value speedily and subject to any security interest of a lessee under ORS 72A.5080:

      (a) The lessee, after rejection of goods in the lessee’s possession, shall hold them with reasonable care at the lessor’s or the supplier’s disposition for a reasonable time after the lessee’s seasonable notification of rejection; and

      (b) If the lessor or the supplier gives no instructions within a reasonable time after notification of rejection, the lessee may store the rejected goods for the lessor’s or the supplier’s account or ship them to the lessor or the supplier or dispose of them for the lessor’s or the supplier’s account with reimbursement in the manner provided in ORS 72A.5110.

      (2) If the lessee complies with subsection (1) of this section, the lessee has no further obligations with regard to goods rightfully rejected.

      (3) Action by the lessee pursuant to subsection (1) of this section is not acceptance or conversion. [1989 c.676 §59]

 

      72A.5130 Cure by lessor of improper tender or delivery; replacement. (1) If any tender or delivery by the lessor or the supplier is rejected because it is nonconforming and the time for performance has not yet expired, the lessor or the supplier may seasonably notify the lessee of the lessor’s or the supplier’s intention to cure and may then make a conforming delivery within the time provided in the lease contract.

      (2) If the lessee rejects a nonconforming tender that the lessor or the supplier had reasonable grounds to believe would be acceptable with or without money allowance, the lessor or the supplier may have a further reasonable time to substitute a conforming tender if the lessor or the supplier seasonably notifies the lessee. [1989 c.676 §60]

 

      72A.5140 Waiver of lessee’s objections. (1) In rejecting goods, a lessee’s failure to state a particular defect that is ascertainable by reasonable inspection precludes the lessee from relying on the defect to justify rejection or to establish default:

      (a) If, stated seasonably, the lessor or the supplier could have cured it under ORS 72A.5130; or

      (b) Between merchants if the lessor or the supplier after rejection has made a request, in writing, for a full and final written statement of all defects on which the lessee proposes to rely.

      (2) A lessee’s failure to reserve rights when paying rent or other consideration against documents precludes recovery of the payment for defects apparent on the face of the documents. [1989 c.676 §61]

 

      72A.5150 Acceptance of goods. (1) Acceptance of goods occurs after the lessee has had a reasonable opportunity to inspect the goods and:

      (a) The lessee signifies or acts with respect to the goods in a manner that signifies to the lessor or the supplier that the goods are conforming or that the lessee will take or retain them in spite of their nonconformity; or

      (b) The lessee fails to make an effective rejection of the goods under ORS 72A.5090.

      (2) Acceptance of a part of any commercial unit is acceptance of that entire unit. [1989 c.676 §62]

 

      72A.5160 Effect of acceptance of goods; notice of default; burden of establishing default after acceptance; notice of claim or litigation to person answerable. (1) A lessee must pay rent for any goods accepted in accordance with the lease contract, with due allowance for goods rightfully rejected or not delivered.

      (2) A lessee’s acceptance of goods precludes rejection of the goods accepted. In the case of a finance lease, if made with knowledge of a nonconformity, acceptance cannot be revoked because of it. In any other case, if made with knowledge of a nonconformity, acceptance cannot be revoked because of it unless the acceptance was on the reasonable assumption that the nonconformity would be seasonably cured. Acceptance does not of itself impair any other remedy provided by this chapter or the lease agreement for nonconformity.

      (3) If a tender has been accepted:

      (a) Within a reasonable time after the lessee discovers or should have discovered any default, the lessee shall notify the lessor and the supplier, if any, or be barred from any remedy against the party not notified;

      (b) Except in the case of a consumer lease, within a reasonable time after the lessee receives notice of litigation for infringement or the like, the lessee shall notify the lessor or be barred from any remedy over for liability established by the litigation; and

      (c) The burden is on the lessee to establish any default.

      (4) If a lessee is sued for breach of a warranty or other obligation for which a lessor or a supplier is answerable, the following apply:

      (a) The lessee may give the lessor or the supplier, or both, written notice of the litigation. If the notice states that the person notified may come in and defend and that if the person notified does not do so that person will be bound in any action against that person by the lessee by any determination of fact common to the two litigations, then unless the person notified after seasonable receipt of the notice does come in and defend, that person is so bound.

      (b) The lessor or the supplier may demand in writing that the lessee turn over control of the litigation including settlement if the claim is one for infringement or the like as provided in ORS 72A.2110 or else be barred from any remedy over. If the demand states that the lessor or the supplier agrees to bear all expense and to satisfy any adverse judgment, then unless the lessee after seasonable receipt of the demand does turn over control the lessee is so barred.

      (5) Subsections (3) and (4) of this section apply to any obligation of a lessee to hold the lessor or the supplier harmless against infringement or the like. [1989 c.676 §63; 1993 c.646 §11]

 

      72A.5170 Revocation of acceptance of goods. (1) A lessee may revoke acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to the lessee if the lessee has accepted it:

      (a) Except in the case of a finance lease, on the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured; or

      (b) Without discovery of the nonconformity if the lessee’s acceptance was reasonably induced either by the lessor’s assurances or, except in the case of a finance lease, by the difficulty of discovery before acceptance.

      (2) Except in the case of a finance lease that is not a consumer lease, a lessee may revoke acceptance of a lot or commercial unit if the lessor defaults under the lease contract and the default substantially impairs the value of that lot or commercial unit to the lessee.

      (3) If the lease agreement so provides, the lessee may revoke acceptance of a lot or commercial unit because of other defaults by the lessor.

      (4) Revocation of acceptance must occur within a reasonable time after the lessee discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by the nonconformity. Revocation is not effective until the lessee notifies the lessor.

      (5) A lessee who so revokes has the same rights and duties with regard to the goods involved as if the lessee had rejected them. [1989 c.676 §64; 1993 c.646 §12]

 

      72A.5180 Cover; substitute goods. (1) After a default by a lessor under the lease contract of the type described in ORS 72A.5080, or, if agreed, after other default by the lessor, the lessee may cover by making any purchase or lease of or contract to purchase or lease goods in substitution for those due from the lessor.

      (2) Except as otherwise provided in ORS 72A.5030 with respect to damages liquidated in the lease agreement or otherwise determined pursuant to agreement of the parties under ORS 71.1020 and 72A.5030, if a lessee’s cover is by a lease agreement substantially similar to the original lease agreement and the new lease agreement is made in good faith and in a commercially reasonable manner, the lessee may recover from the lessor as damages:

      (a) The present value, as of the date of the commencement of the term of the new lease agreement, of the rent under the new lease agreement applicable to that period of the new lease term which is comparable to the then remaining term of the original lease agreement minus the present value as of the same date of the total rent for the then remaining lease term of the original lease agreement; and

      (b) Any incidental or consequential damages, less expenses saved in consequence of the lessor’s default.

      (3) If a lessee’s cover is by lease agreement that for any reason does not qualify for treatment under subsection (2) of this section, or is by purchase or otherwise, the lessee may recover from the lessor as if the lessee had elected not to cover and ORS 72A.5190 governs. [1989 c.676 §65; 1993 c.646 §13]

 

      72A.5190 Lessee’s damages for nondelivery, repudiation, default and breach of warranty in regard to accepted goods. (1) Except as otherwise provided in ORS 72A.5030 with respect to damages liquidated in the lease agreement or otherwise determined pursuant to agreement of the parties under ORS 71.1020 and 72A.5030, if a lessee elects not to cover or a lessee elects to cover and the cover is by lease agreement that for any reason does not qualify for treatment under ORS 72A.5180, or is by purchase or otherwise, the measure of damages for nondelivery or repudiation by the lessor or for rejection or revocation of acceptance by the lessee is the present value, as of the date of the default, of the then market rent minus the present value as of the same date of the original rent, computed for the remaining lease term of the original lease agreement, together with incidental and consequential damages, less expenses saved in consequence of the lessor’s default.

      (2) Market rent is to be determined as of the place for tender or, in cases of rejection after arrival or revocation of acceptance, as of the place of arrival.

      (3) Except as otherwise agreed, if the lessee has accepted goods and given notification under ORS 72A.5160, the measure of damages for nonconforming tender or delivery or other default by a lessor is the loss resulting in the ordinary course of events from the lessor’s default as determined in any manner that is reasonable together with incidental and consequential damages, less expenses saved in consequence of the lessor’s default.

      (4) Except as otherwise agreed, the measure of damages for breach of warranty is the present value at the time and place of acceptance of the difference between the value of the use of the goods accepted and the value if they had been as warranted for the lease term, unless special circumstances show proximate damages of a different amount, together with incidental and consequential damages, less expenses saved in consequence of the lessor’s default or breach of warranty. [1989 c.676 §66; 1993 c.646 §14]

 

      72A.5200 Lessee’s incidental and consequential damages. (1) Incidental damages resulting from a lessor’s default include expenses reasonably incurred in inspection, receipt, transportation, and care and custody of goods rightfully rejected or goods the acceptance of which is justifiably revoked, any commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expense incident to the default.

      (2) Consequential damages resulting from a lessor’s default include:

      (a) Any loss resulting from general or particular requirements and needs of which the lessor at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and

      (b) Injury to person or property proximately resulting from any breach of warranty. [1989 c.676 §67]

 

      72A.5210 Lessee’s right to specific performance or replevin. (1) A judgment requiring specific performance may be entered if the goods are unique or in other proper circumstances.

      (2) A judgment for specific performance may include any terms and conditions as to payment of the rent, damages or other relief that the court considers just.

      (3) A lessee has a right of replevin, detinue, sequestration, claim and delivery or the like for goods identified to the lease contract if after reasonable effort the lessee is unable to effect cover for those goods or the circumstances reasonably indicate that the effort will be unavailing. [1989 c.676 §68; 2003 c.576 §334]

 

      72A.5220 Lessee’s right to goods on lessor’s insolvency. (1) Subject to subsection (2) of this section and even though the goods have not been shipped, a lessee who has paid a part or all of the rent and security for goods identified to a lease contract as provided in ORS 72A.2170 on making and keeping good a tender of any unpaid portion of the rent and security due under the lease contract may recover the goods identified from the lessor if the lessor becomes insolvent within 10 days after receipt of the first installment of rent and security.

      (2) A lessee acquires the right to recover goods identified to a lease contract only if they conform to the lease contract. [1989 c.676 §69]

 

      72A.5230 Lessor’s remedies. (1) If a lessee wrongfully rejects or revokes acceptance of goods or fails to make a payment when due or repudiates with respect to a part or the whole, then with respect to any goods involved, and with respect to all of the goods if under an installment lease contract the value of the whole lease contract is substantially impaired as provided under ORS 72A.5100, the lessee is in default under the lease contract and the lessor may:

      (a) Cancel the lease contract as provided in ORS 72A.5050;

      (b) Proceed respecting goods not identified to the lease contract as provided in ORS 72A.5240;

      (c) Withhold delivery of the goods and take possession of goods previously delivered as provided in ORS 72A.5250;

      (d) Stop delivery of the goods by any bailee as provided in ORS 72A.5260;

      (e) Dispose of the goods and recover damages as provided in ORS 72A.5270, retain the goods and recover damages as provided in ORS 72A.5280, or in a proper case recover rent as provided in ORS 72A.5290; or

      (f) Exercise any other rights or pursue any other remedies provided in the lease contract.

      (2) If a lessor does not fully exercise a right or obtain a remedy to which the lessor is entitled under subsection (1) of this section, the lessor may recover the loss resulting in the ordinary course of events from the lessee’s default as determined in any reasonable manner, together with incidental damages, less expenses saved in consequence of the lessee’s default.

      (3) If a lessee is otherwise in default under a lease contract, the lessor may exercise the rights and pursue the remedies provided in the lease contract, which may include a right to cancel the lease. In addition, unless otherwise provided in the lease contract:

      (a) If the default substantially impairs the value of the lease contract to the lessor, the lessor may exercise the rights and pursue the remedies provided in subsection (1) or (2) of this section; or

      (b) If the default does not substantially impair the value of the lease contract to the lessor, the lessor may recover as provided in subsection (2) of this section. [1989 c.676 §70; 1993 c.646 §15; 1995 c.79 §22]

 

      72A.5240 Lessor’s right to identify goods to lease contract. (1) A lessor aggrieved under ORS 72A.5230 may:

      (a) Identify to the lease contract conforming goods not already identified if at the time the lessor learned of the default they were in the lessor’s or the supplier’s possession or control; and

      (b) Dispose of goods as provided in ORS 72A.5270 that demonstrably have been intended for the particular lease contract even though those goods are unfinished.

      (2) If the goods are unfinished, in the exercise of reasonable commercial judgment for the purposes of avoiding loss and of effective realization, an aggrieved lessor or the supplier may either complete manufacture and wholly identify the goods to the lease contract or cease manufacture and lease, sell or otherwise dispose of the goods for scrap or salvage value or proceed in any other reasonable manner. [1989 c.676 §71]

 

      72A.5250 Lessor’s right to possession of goods. (1) If a lessor discovers the lessee to be insolvent, the lessor may refuse to deliver the goods.

      (2) After a default by the lessee under the lease contract of the type described in ORS 72A.5230 (1) and (3)(a) or, if agreed, after other default by the lessee, the lessor has the right to take possession of the goods. If the lease contract so provides, the lessor may require the lessee to assemble the goods and make them available to the lessor at a place to be designated by the lessor which is reasonably convenient to both parties. Without removal, the lessor may render unusable any goods employed in trade or business and may dispose of goods on the lessee’s premises as provided in ORS 72A.5270.

      (3) The lessor may proceed under subsection (2) of this section without judicial process if it can be done without breach of the peace or the lessor may proceed by action. [1989 c.676 §72; 1993 c.646 §16]

 

      72A.5260 Lessor’s stoppage of delivery in transit or otherwise. (1) A lessor may stop delivery of goods in the possession of a carrier or other bailee if the lessor discovers the lessee to be insolvent and may stop delivery of carload, truckload, planeload or larger shipments of express or freight if the lessee repudiates or fails to make a payment due before delivery, whether for rent, security or otherwise under the lease contract, or for any other reason the lessor has a right to withhold or take possession of the goods.

      (2) In pursuing its remedies under subsection (1) of this section, the lessor may stop delivery until:

      (a) Receipt of the goods by the lessee;

      (b) Acknowledgment to the lessee by any bailee of the goods, except a carrier, that the bailee holds the goods for the lessee; or

      (c) Such an acknowledgment to the lessee by a carrier via reshipment or as warehouseman.

      (3)(a) To stop delivery, a lessor shall so notify as to enable the bailee by reasonable diligence to prevent delivery of the goods.

      (b) After notification, the bailee shall hold and deliver the goods according to the directions of the lessor, but the lessor is liable to the bailee for any ensuing charges or damages.

      (c) A carrier who has issued a nonnegotiable bill of lading is not obliged to obey a notification to stop received from a person other than the consignor. [1989 c.676 §73]

 

      72A.5270 Lessor’s rights to dispose of goods. (1) After a default by a lessee under the lease contract of the type described in ORS 72A.5230 or after the lessor refuses to deliver or takes possession of goods as provided in ORS 72A.5250 or 72A.5260, or, if agreed, after other default by a lessee, the lessor may dispose of the goods concerned or the undelivered balance thereof by lease, sale or otherwise.

      (2) Except as otherwise provided with respect to damages liquidated in the lease agreement as provided in ORS 72A.5040 or otherwise determined pursuant to agreement of the parties as provided in ORS 71.1020 and 72A.5030, if the disposition is by lease agreement substantially similar to the original lease agreement and the new lease agreement is made in good faith and in a commercially reasonable manner, the lessor may recover from the lessee, as damages, accrued and unpaid rent as of the date of the commencement of the term of the new lease agreement, the present value, as of the same date, of the total rent for the then remaining lease term of the original lease agreement minus the present value, as of the same date, of the rent under the new lease agreement applicable to that period of the new lease term which is comparable to the then remaining term of the original lease agreement, and any incidental damages allowed under ORS 72A.5300, less expenses saved in consequence of the lessee’s default.

      (3) If the lessor’s disposition is by lease agreement that for any reason does not qualify for treatment under subsection (2) of this section or is by sale or otherwise, the lessor may recover from the lessee as if the lessor had elected not to dispose of the goods and ORS 72A.5280 governs.

      (4) A subsequent buyer or lessee who buys or leases from the lessor in good faith for value as a result of a disposition under this section takes the goods free of the original lease contract and any rights of the original lessee even though the lessor fails to comply with one or more of the requirements of this chapter.

      (5) The lessor is not accountable to the lessee for any profit made on any disposition. A lessee who has rightfully rejected or justifiably revoked acceptance shall account to the lessor for any excess over the amount of the lessee’s security interest as provided in ORS 72A.5080. [1989 c.676 §74; 1993 c.646 §17]

 

      72A.5280 Lessor’s damages for default. (1) Except as otherwise provided with respect to damages liquidated in the lease agreement as provided in ORS 72A.5040 or otherwise determined pursuant to agreement of the parties as provided in ORS 71.1020 and 72A.5030, if a lessor elects to retain the goods or a lessor elects to dispose of the goods and the disposition is by lease agreement that for any reason does not qualify for treatment under ORS 72A.5270, or is by sale or otherwise, the lessor may recover from the lessee as damages for a default of the type described in ORS 72A.5230, or, if agreed, for other default of the lessee, accrued and unpaid rent as of the date of default if the lessee has never taken possession of the goods, or, if the lessee has taken possession of the goods, as of the date the lessor repossesses the goods or an earlier date on which the lessee makes a tender of the goods to the lessor, the present value as of the date determined under this section of the total rent for the then remaining lease term of the original lease agreement minus the present value as of the same date of the market rent at the place where the goods are located computed for the same lease term and any incidental damages allowed under ORS 72A.5300, less expenses saved in consequence of the lessee’s default.

      (2) If the measure of damages provided in subsection (1) of this section is inadequate to put a lessor in as good a position as performance would have, the measure of damages is the present value of the profit, including reasonable overhead, the lessor would have made from full performance by the lessee, together with any incidental damages allowed under ORS 72A.5300, due allowance for costs reasonably incurred and due credit for payments or proceeds of disposition. [1989 c.676 §75; 1993 c.646 §18]

 

      72A.5290 Lessor’s action for the rent. (1) After default by the lessee under the lease contract of the type described in ORS 72A.5230, or, if agreed after other default by the lessee, if the lessor complies with subsection (2) of this section, the lessor may recover from the lessee as damages:

      (a) For goods accepted by the lessee and not repossessed by or tendered to the lessor and for conforming goods lost or damaged within a commercially reasonable time after risk of loss passes to the lessee as provided in ORS 72A.2190:

      (A) Accrued and unpaid rent as of the date of entry of judgment in favor of the lessor;

      (B) The present value as of the same date of the rent for the then remaining lease term of the lease agreement; and

      (C) Any incidental damages allowed under ORS 72A.5300, less expenses saved in consequence of the lessee’s default; and

      (b) For goods identified to the lease contract if the lessor is unable after reasonable effort to dispose of them at a reasonable price or the circumstances reasonably indicate that effort will be unavailing, accrued and unpaid rent as of the date of entry of judgment in favor of the lessor, the present value as of the same date of the rent for the then remaining lease term of the lease agreement and any incidental damages allowed under ORS 72A.5300, less expenses saved in consequence of the lessee’s default.

      (2) Except as provided in subsection (3) of this section, the lessor shall hold for the lessee for the remaining lease term of the lease agreement any goods that have been identified to the lease contract and are in the lessor’s control.

      (3) The lessor may dispose of the goods at any time before collection of the judgment for damages obtained pursuant to subsection (1) of this section. If the disposition is before the end of the remaining lease term of the lease agreement, the lessor’s recovery against the lessee for damages is governed by ORS 72A.5270 or 72A.5280, and the lessor will cause an appropriate credit to be provided against a judgment for damages to the extent that the amount of the judgment exceeds the recovery available pursuant to ORS 72A.5270 or 72A.5280.

      (4) Payment of the judgment for damages obtained pursuant to subsection (1) of this section entitles the lessee to the use and possession of the goods not then disposed of for the remaining lease term of and in accordance with the lease agreement.

      (5) After a lessee has wrongfully rejected or revoked acceptance of goods, has failed to pay rent then due or has repudiated as provided in ORS 72A.4020, a lessor who is held not entitled to rent under this section must nevertheless be awarded damages for nonacceptance under ORS 72A.5270 and 72A.5280. [1989 c.676 §76; 1993 c.646 §19]

 

      72A.5295 Lessor’s recovery for loss of or damage to residual interest in goods. In addition to any other recovery permitted by this chapter or other law, the lessor may recover from the lessee an amount that will fully compensate the lessor for any loss of or damage to the lessor’s residual interest in the goods caused by the default of the lessee. [1993 c.646 §21]

 

      72A.5300 Lessor’s incidental damages. Incidental damages to an aggrieved lessor include any commercially reasonable charges, expenses or commissions incurred in stopping delivery, in the transportation, care and custody of goods after the lessee’s default, in connection with return or disposition of the goods, or otherwise resulting from the default. [1989 c.676 §77]

 

      72A.5310 Standing to sue third parties for injury to goods. (1) If a third party so deals with goods that have been identified to a lease contract as to cause actionable injury to a party to the lease contract, the lessor has a right of action against the third party and the lessee also has a right of action against the third party if the lessee:

      (a) Has a security interest in the goods;

      (b) Has an insurable interest in the goods; or

      (c) Bears the risk of loss under the lease contract or has since the injury assumed that risk as against the lessor and the goods have been converted or destroyed.

      (2) If at the time of the injury the party plaintiff did not bear the risk of loss as against the other party to the lease contract and there is no arrangement between them for disposition of the recovery, the plaintiff’s suit or settlement, subject to the plaintiff’s own interest, is as a fiduciary for the other party to the lease contract.

      (3) Either party with the consent of the other may sue for the benefit of whom it may concern. [1989 c.676 §78]

 

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