NMSA 55-2A-303. Alienability of party's interest under lease contract or of

55-2A-303. 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 Chapter 55, Article 9 NMSA 1978 by reason of Paragraph (3) of Subsection (a) of Section 55-9-109 NMSA 1978. (2) Except as provided in Subsection (3) of this section and Section 55-9-407 NMSA 1978, a provision in a lease agreement which (i) 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 (ii) 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 which (i) 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 (ii) makes such a transfer an event of default, is not enforceable, and such a transfer 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 within the purview of Subsection (4) of this section. (4) Subject to Subsection (3) of this section and Section 55-9-407 NMSA 1978: (a) if a transfer is made which is made an event of default under a lease agreement, the party to the lease contract not making the transfer, unless that party waives the default or otherwise agrees, has the rights and remedies described in Subsection (2) of Section 55-2A-501 NMSA 1978; and (b) if Paragraph (a) of this subsection is not applicable and if a transfer is made that (i) is prohibited under a lease agreement, or (ii) 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, unless the party not making the transfer agrees at any time to the transfer in the lease contract or otherwise, then, except as limited by contract, (i) 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 (ii) a court having jurisdiction may grant other appropriate relief, including cancellation of the lease contract or an injunction against the transfer. (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, as in a transfer for security, indicate the contrary, 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. History: 1978 Comp., § 55-2A-303, enacted by Laws 1992, ch. 114, § 40; 2001, ch. 139, § 134. OFFICIAL COMMENTS UCC Official Comments © by ALI & the NCCUSL. Reproduced with permission of the PEB for the UCC. All rights reserved. Uniform Statutory Source: — Sections 2-210 and 9-311 [55-2-210 and 55-9-311 NMSA 1978, respectively]. Purposes: — The provisions of Sections 2-210 and 9-311 [55-2-210 and 55-9-311 NMSA 1978, respectively] were incorporated in this section, with substantial modifications to reflect leasing terminology and practice and to harmonize the principles of the respective provisions, i.e., limitations on delegation of performance on the one hand and alienability of rights on the other. In addition, unlike Section 2-210 [55-2-210 NMSA 1978] which deals only with voluntary transfers, this section deals with involuntary as well as voluntary transfers. Moreover, the principle of Section 9-318(4) [55-9-318 NMSA 1978] denying effectiveness to contractual terms prohibiting assignments of receivables due and to become due also is implemented. 1. Subsection (2) states a rule, consistent with Section 9-311 [55-9-311 NMSA 1978], that voluntary and involuntary transfers of an interest of a party under the lease contract or of the lessor's residual interest, including by way of the creation or enforcement of a security interest, are effective, notwithstanding a provision in the lease agreement prohibiting the transfer or making the transfer an event of default. Although the transfers are effective, the provision in the lease agreement is nevertheless enforceable, but only as provided in subsection (5). Under subsection (5) the prejudiced party is limited to the remedies on "default under the lease contract" in this Article and, except as limited by this Article, as provided in the lease agreement, if the transfer has been made an event of default. Section 2A-501(2) [55-2A-501 NMSA 1978]. Usually, there will be a specific provision to this effect or a general provision making a breach of a covenant an event of default. In those cases where the transfer is prohibited, but not made an event of default, the prejudiced party may recover damages; or, if the damage remedy would be ineffective adequately to protect that party, the court can order cancellation of the lease contract or enjoin the transfer. This rule that such provisions generally are enforceable is subject to subsections (3) and (4), which make such provisions unenforceable in certain instances. 2. The first such instance is described in subsection (3). A provision in a lease agreement which prohibits the creation or enforcement of a security interest, including sales of lease contracts subject to Article 9 (Sections 9-102(1)(b) and 9-104(f)) [55-9- 102 and 55-9-104 NMSA 1978, respectively], or makes it an event of default is generally not enforceable, reflecting the policy of Section 9-318(4) [55-9-318 NMSA 1978]. However, that policy gives way to the doctrine stated in Section 2-210(2) [55-2-210 NMSA 1978], which gives one party to a contract the right to protect itself against an actual delegation (but not just a provision under which delegation might later occur) of a material performance by the other party. Accordingly, such a provision in a lease agreement is enforceable when the transfer delegates a material performance. Generally, as expressly provided in subsection (6), a transfer for security is not a delegation of duties. However, inasmuch as the creation of a security interest includes the sale of a lease contract, if there are then unperformed duties on the part of the lessor/seller, there could be a delegation of duties in the sale, and, if such a delegation actually takes place and is of a material performance, a provision in a lease agreement prohibiting it or making it an event of default would be enforceable, giving rise to the rights and remedies stated in Subsection (5). The statute does not define "material." The parties may set standards to determine its meaning. The term is intended to exclude delegations of matters such as accounting to a professional accountant and the performance of, as opposed to the responsibility for, maintenance duties to a person in the maintenance service industry. 3. For similar reasons, the lessor is entitled to protect its residual interest in the goods by prohibiting anyone but the lessee from possessing or using them. Accordingly, under Subsection (3) if there is an actual transfer by the lessee of its right of possession or use of the goods in violation of a provision in the lease agreement, such a provision likewise is enforceable, giving rise to the rights and remedies stated in Subsection (5). A transfer of the lessee's right of possession or use of the goods resulting from the enforcement of a security interest granted by the lessee in its leasehold interest is a "transfer by the lessee" under this subsection. 4. Finally, Subsection (3) protects against a claim that the creation or enforcement of a security interest in the lessor's interest under the lease contract or in the residual interest is 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 lessee so as to give rise to the rights and remedies stated in Subsection (5), unless the transfer involves an actual delegation of a material performance of the lessor. 5. While it is not likely that a transfer by the lessor of its right to payment under the lease contract would impair at a future time the ability of the lessee to obtain the performance due the lessee under the lease contract from the lessor, if under the circumstances reasonable grounds for insecurity as to receiving that performance arise, the lessee may employ the provision of this Article for demanding adequate assurance of due performance and has the remedy provided in that circumstance. Section 2A-401 [55-2A-401 NMSA 1978]. 6. Sections 9-206 and 9-318(1) through (3) [55-9-206 and 55-9-318 NMSA 1978, respectively] also are relevant. Section 9-206 sanctions an agreement by a lessee not to assert certain types of claims or defenses against the lessor's assignee. Section 9- 318(1) through (3) [55-9-318 NMSA 1978] deal with, among other things, the other party's rights against the assignee where Section 9-206(1) [55-9-206 NMSA 1978] does not apply. Since the definition of contract under Section 1-201(11) [55-1-201 NMSA 1978] includes a lease agreement, the definition of account debtor under Section 9- 105(1)(a) [55-9-105 NMSA 1978] includes a lessee of goods. As a result, Section 9-206 [55-9-206 NMSA 1978] applies to lease agreements, and there is no need to restate those sections in this Article. The reference to "defenses or claims arising out of a sale" in Section 9-318(1) [55-9-318 NMSA 1978] should be interpreted broadly to include defenses or claims arising out of a lease inasmuch as that section codifies the common law rule with respect to contracts, including lease contracts. 7. Subsection (4) is based upon Section 2-210(2) and Section 9-318(4) [55-2-210 and 55-9-318 NMSA 1978]. It makes unenforceable a prohibition against transfers of certain rights to payment or a provision making the transfer an event of default. It also provides that such transfers do not materially impair the prospect of obtaining return performance by, materially change the duty of, or materially increase the burden or risk imposed on, the other party to the lease contract so as to give rise to the rights and remedies stated in Subsection (5). Accordingly, a transfer of a right to payment cannot be prohibited or made an event of default, or be one that materially impairs performance, changes duties or increases risk, if the right is already due or will become due without further performance being required by the party to receive payment. Thus, a lessor can transfer the right to future payments under the lease contract, including by way of a grant of a security interest, and the transfer will not give rise to the rights and remedies stated in Subsection (5) if the lessor has no remaining performance under the lease contract. The mere fact that the lessor is obligated to allow the lessee to remain in possession and to use the goods as long as the lessee is not in default does not mean that there is "remaining performance" on the part of the lessor. Likewise, the fact that the lessor has potential liability under a "non-operating" lease contract for breaches of warranty does not mean that there is "remaining performance." In contrast, the lessor would have "remaining performance" under a lease contract requiring the lessor to regularly maintain and service the goods or to provide "upgrades" of the equipment on a periodic basis in order to avoid obsolescence. The basic distinction is between a mere potential duty to respond which is not "remaining performance," and an affirmative duty to render stipulated performance. Although the distinction may be difficult to draw in some cases, it is instructive to focus on the difference between "operating" and "non- operating" leases as generally understood in the marketplace. Even if there is "remaining performance" under a lease contract, a transfer for security of a right to payment that is made an event of default or that is in violation of a prohibition against transfer does not give rise to the rights and remedies under Subsection (5) if it does not constitute an actual delegation of a material performance under Subsection (3). 8. Subsection (7) requires that a provision in a consumer lease prohibiting a transfer, or making it an event of default, must be specific, written and conspicuous. See Section 1-201(b)(10) [55-1-201 NMSA 1978]. This assists in protecting a consumer lessee against surprise assertions of default. 9. Subsection (5) is taken almost verbatim from the provisions of Section 2-210(5) [55-2-210 NMSA 1978]. The subsection states a rule of construction that distinguishes a commercial assignment, which substitutes the assignee for the assignor as to rights and duties, and an assignment for security or financing assignment, which substitutes the assignee for the assignor only as to rights. Note that the assignment for security or financing assignment is a subset of all security interests. Security interest is defined to include "any interest of a buyer of . . . chattel paper." Section 1-201(b)(35) [55-1-201 NMSA 1978]. Chattel paper is defined to include a lease. Section 9-102 [55-9-102 NMSA 1978]. Thus, a buyer of leases is the holder of a security interest in the leases. That conclusion should not influence this issue, as the policy is quite different. Whether a buyer of leases is the holder of a commercial assignment, or an assignment for security or financing assignment should be determined by the language of the assignment or the circumstances of the assignment. 10. As to the use of a record other than a writing and communications that are not written, see Section 2A-103 [55-2A-103 NMSA 1978], Comment (g). 11. If a transfer gives rise to the rights and remedies provided in Subsection (5), the transferee as an alternative may propose, and the other party may accept, adequate cure or compensation for past defaults and adequate assurance of future due performance under the lease contract. Subsection (5) does not preclude any other relief that may be available to a party to the lease contract aggrieved by a transfer subject to an enforceable prohibition, such as an action for interference with contractual relations. 12. Subsection (8) requires that a provision in a consumer lease prohibiting a transfer, or making it an event of default, must be specific, written and conspicuous. See Section 1-201(10) [55-1-201 NMSA 1978]. This assists in protecting a consumer lessee against surprise assertions of default. 13. Subsection (6) is taken almost verbatim from the provisions of Section 2-210(4) [55-2-210 NMSA 1978]. The subsection states a rule of construction that distinguishes a commercial assignment, which substitutes the assignee for the assignor as to rights and duties, and an assignment for security or financing assignment, which substitutes the assignee for the assignor only as to rights. Note that the assignment for security or financing assignment is a subset of all security interests. Security interest is defined to include "any interest of a buyer of . . . chattel paper". Section 1-201(37) [55-1-201 NMSA 1978]. Chattel paper is defined to include a lease. Section 9-105(1)(b) [55-9-105 NMSA 1978]. Thus, a buyer of leases is the holder of a security interest in the leases. That conclusion should not influence this issue, as the policy is quite different. Whether a buyer of leases is the holder of a commercial assignment, or an assignment for security or financing assignment should be determined by the language of the assignment or the circumstances of the assignment. Cross References: — Sections 1-201(11), 1-201(37), 2-210, 2A-401, 9-102(1)(b), 9- 104(f), 9-105(1)(a), 9-206, and 9-318 [55-1-201, 55-2-210, 55-2A-401, 55-9-102, 55-9- 104, 55-9-105, 55-9-206 and 55-9-318 NMSA 1978, respectively]. "Agreed" and "Agreement". Section 1-201(3) [55-1-201 NMSA 1978]. "Conspicuous". Section 1-201(10) [55-1-201 NMSA 1978]. "Goods". Section 2A-103(1)(h) [55-2A-103 NMSA 1978]. "Lease". Section 2A-103(1)(j) [55-2A-103 NMSA 1978]. "Lease contract". Section 2A-103(1)(l) [55-2A-103 NMSA 1978]. "Lessee". Section 2A-103(1)(n) [55-2A-103 NMSA 1978]. "Lessor". Section 2A-103(1)(p) [55-2A-103 NMSA 1978]. "Lessor's residual interest". Section 2A-103(1)(q) [55-2A-103 NMSA 1978]. "Notice". Section 1-201(25) [55-1-201 NMSA 1978]. "Party". Section 1-201(29) [55-1-201 NMSA 1978]. "Person". Section 1-201(30) [55-1-201 NMSA 1978]. "Reasonable time". Section 1-204(1) and (2) [55-1-204 NMSA 1978]. "Rights". Section 1-201(36) [55-1-201 NMSA 1978]. "Term". Section 1-201(42) [55-1-201 NMSA 1978]. "Writing". Section 1-201(46) [55-1-201 NMSA 1978].