41-01-08. (1-108) Relation to Electronic Signatures in Global and National Commerce
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Act.
This chapter modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act [Pub. L. 106-229; 114 Stat. 464; 15 U.S.C. 7001 et seq.] but does not modify, limit, or supersede section 101(c) of that Act [15 U.S.C. 7001(c)] or authorize electronic delivery of any of the notices described in section 103(b) of that Act [15 U.S.C. 103(b)].
41-01-09. (1-201) General definitions. 1. Unless the context otherwise requires, words or phrases defined in this section, or in
additional definitions contained in other chapters of this title which apply to particular
chapters or parts of chapters, have the meanings stated. 2. Subject to definitions contained in other chapters of this title which apply to particular
chapters or parts of chapters:
a. "Action", in the sense of a judicial proceeding, includes recoupment,
counterclaim, setoff, suit in equity, and any other proceeding in which rights are
determined.
b. "Aggrieved party" means a party entitled to pursue a remedy.
c. "Agreement", as distinguished from "contract", means the bargain of the parties in
fact, as found in their language or inferred from other circumstances, including
course of performance, course of dealing, or usage of trade as provided under
section 41-09-17.
d. "Bank" means a person engaged in the business of banking and includes a
savings bank, savings and loan association, credit union, and trust company.
e. "Bearer" means a person in control of a negotiable electronic document of title or
a person in possession of a negotiable instrument, negotiable tangible document
of title, or certificated security that is payable to bearer or indorsed in blank.
f. "Bill of lading" means a document of title evidencing the receipt of goods for
shipment issued by a person engaged in the business of directly or indirectly
transporting or forwarding goods. The term does not include a warehouse receipt.
g. "Branch" includes a separately incorporated foreign branch of a bank.
h. "Burden of establishing" a fact means the burden of persuading the trier of fact
that the existence of the fact is more probable than its nonexistence.
i. "Buyer in ordinary course of business" means a person that buys goods in good
faith, without knowledge that the sale violates the rights of another person in the
goods, and in the ordinary course from a person, other than a pawnbroker, in the
business of selling goods of that kind. A person buys goods in the ordinary course
if the sale to the person comports with the usual or customary practices in the
kind of business in which the seller is engaged or with the seller's own usual or
customary practices. A person that sells oil, gas, or other minerals at the wellhead
or minehead is a person in the business of selling goods of that kind. A buyer in
ordinary course of business may buy for cash, by exchange of other property, or
on secured or unsecured credit, and may acquire goods or documents of title
under a pre-existing contract for sale. Only a buyer that takes possession of the
goods or has a right to recover the goods from the seller under chapter 41-02
may be a buyer in ordinary course of business. "Buyer in ordinary course of
business" does not include a person that acquires goods in a transfer in bulk or
as security for or in total or partial satisfaction of a money debt.
j. "Conspicuous", with reference to a term, means so written, displayed, or
presented that, based on the totality of the circumstances, a reasonable person
against which it is to operate ought to have noticed it. Whether a term is
"conspicuous" or not is a decision for the court.
k. "Consumer" means an individual who enters into a transaction primarily for
personal, family, or household purposes.
l. "Contract", as distinguished from "agreement", means the total legal obligation
that results from the parties' agreement as determined by this title as
supplemented by any other applicable laws.
m. "Creditor" includes a general creditor, a secured creditor, a lien creditor, and any
representative of creditors, including an assignee for the benefit of creditors, a
trustee in bankruptcy, a receiver in equity, and an executor or administrator of an
insolvent debtor's or assignor's estate.
n. "Defendant" includes a person in the position of defendant in a counterclaim,
cross-claim, or third-party claim.
o. "Delivery", with respect to an electronic document of title, means voluntary
transfer of control and, with respect to an instrument, a tangible document of title,
or an authoritative tangible copy of a record evidencing chattel paper, means
voluntary transfer of possession.
p. "Document of title" means a record that in the regular course of business or
financing is treated as adequately evidencing that the person in possession or
control of the record is entitled to receive, control, hold, and dispose of the record
and the goods the record covers and that purports to be issued by or addressed
to a bailee and to cover goods in the bailee's possession which are either
identified or are fungible portions of an identified mass. The term includes a bill of
lading, transport document, dock warrant, dock receipt, warehouse receipt, and
order for delivery of goods. An electronic document of title means a document of
title evidenced by a record consisting of information stored in an electronic
medium. A tangible document of title means a document of title evidenced by a
record consisting of information that is inscribed on a tangible medium.
q. "Electronic" means relating to technology having electrical, digital, magnetic,
wireless, optical, electromagnetic, or similar capabilities.
r. "Fault" means a default, breach, or wrongful act or omission.
s. "Fungible goods" means:
(1)Goods of which any unit, by nature or usage of trade, is the equivalent of
any other like unit; or
(2)Goods that by agreement are treated as equivalent.
t. "Genuine" means free of forgery or counterfeiting.
u. "Good faith", except as otherwise provided in chapter 41-05, means honesty in
fact and the observance of reasonable commercial standards of fair dealing.
v. "Holder" means:
(1)The person in possession of a negotiable instrument that is payable either to
bearer or to an identified person that is the person in possession;
(2)The person in possession of a document of title if the goods are deliverable
either to bearer or to the order of the person in possession; or
(3)The person in control, other than pursuant to subsection 7 of section
41-07-06, of a negotiable electronic document of title. w. "Insolvency proceeding" includes an assignment for the benefit of creditors or
other proceeding intended to liquidate or rehabilitate the estate of the person
involved.
x. "Insolvent" means:
(1)Having generally ceased to pay debts in the ordinary course of business
other than as a result of bona fide dispute;
(2)Being unable to pay debts as they become due; or
(3)Being insolvent within the meaning of federal bankruptcy law.
y. "Money" means a medium of exchange that is currently authorized or adopted by
a domestic or foreign government. The term includes a monetary unit of account
established by an intergovernmental organization, or by agreement between two
or more countries. The term does not include an electronic record that is a
medium of exchange recorded and transferable in a system that existed and
operated for the medium of exchange before the medium of exchange was
authorized or adopted by the government.
z. "Organization" means a person other than an individual. aa. "Party", as distinguished from "third party", means a person that has engaged in a
transaction or made an agreement subject to this title. bb. "Person" means an individual, a corporation, a business trust, an estate, a trust, a
partnership, a limited liability company, an association, a joint venture, a
government, a governmental subdivision, an agency, or an instrumentality, or any
other legal or commercial entity. The term includes a protected series, however
denominated, of an entity if the protected series is established under law other
than this title which limits, or limits if conditions specified under the law are
satisfied, the ability of a creditor of the entity or of any other protected series of
the entity to satisfy a claim from assets of the protected series.
cc. "Present value" means the amount as of a date certain of one or more sums
payable in the future, discounted to the date certain by use of either an interest
rate specified by the parties if that rate is not manifestly unreasonable at the time
the transaction is entered or, if an interest rate is not so specified, a commercially
reasonable rate that takes into account the facts and circumstances at the time
the transaction is entered. dd. "Purchase" means taking by sale, lease, discount, negotiation, mortgage, pledge,
lien, security interest, issue or reissue, gift, or any other voluntary transaction
creating an interest in property. ee. "Purchaser" means a person that takes by purchase.
ff. "Record" means information that is inscribed on a tangible medium or that is
stored in an electronic or other medium and is retrievable in perceivable form. gg. "Remedy" means any remedial right to which an aggrieved party is entitled with
or without resort to a tribunal. hh. "Representative" means a person empowered to act for another, including an
agent, an officer of a corporation or association, and a trustee, executor, or
administrator of an estate.
ii. "Right" includes remedy.
jj. "Security interest" means an interest in personal property or fixtures which
secures payment or performance of an obligation. "Security interest" includes any
interest of a consignor and a buyer of accounts, chattel paper, a payment
intangible, or a promissory note in a transaction that is subject to chapter 41-09.
"Security interest" does not include the special property interest of a buyer of
goods on identification of those goods to a contract for sale under section
41-02-46, but a buyer may also acquire a "security interest" by complying with
chapter 41-09. Except as otherwise provided in section 41-02-53, the right of a
seller or lessor of goods under chapter 41-02 or 41-02.1 to retain or acquire
possession of the goods is not a "security interest", but a seller or lessor may also
acquire a "security interest" by complying with chapter 41-09. The retention or
reservation of title by a seller of goods notwithstanding shipment or delivery to the
buyer under section 41-02-46 is limited in effect to a reservation of a "security
interest". Whether a transaction in the form of a lease creates a "security interest"
is determined under section 41-01-11.
kk. "Send", in connection with a record or notification, means:
(1)To deposit in the mail, deliver for transmission, or transmit by any other
usual means of communication, with postage or cost of transmission
provided for, addressed to any address reasonable under the
circumstances; or
(2)To cause the record or notification to be received within the time it would
have been received if properly sent under paragraph 1.
ll. "Sign" means, with present intent to authenticate or adopt a record, to execute or
adopt a tangible symbol, or attach to or logically associate with the record an
electronic symbol, sound, or process. "Signed", "signing", and "signature" have
corresponding meanings. mm. "State" means a state of the United States, the District of Columbia, Puerto Rico,
the United States Virgin Islands, or any territory or insular possession subject to
the jurisdiction of the United States. nn. "Surety" includes a guarantor or other secondary obligor. oo. "Term" means a portion of an agreement that relates to a particular matter. pp. "Unauthorized signature" means a signature made without actual, implied, or
apparent authority. The term includes a forgery. qq. "Warehouse receipt" means a document of title issued by a person engaged in
the business of storing goods for hire.
rr. "Writing" includes printing, typewriting, or any other intentional reduction to
tangible form. "Written" has a corresponding meaning.
41-01-10. (1-202) Notice - Knowledge. 1. Subject to subsection 6, a person has "notice" of a fact if the person:
a. Has actual knowledge of that fact;
b. Has received a notice or notification of that fact; or
c. From all the facts and circumstances known to the person at the time in question,
has reason to know that that fact exists. 2. "Knowledge" means actual knowledge. "Knows" has a corresponding meaning. 3. "Discover", "learn", or words of similar import refer to knowledge rather than to reason
to know. 4. A person "notifies" or "gives" a notice or notification to another person by taking such
steps as may be reasonably required to inform the other person in ordinary course,
whether or not the other person actually comes to know of it. 5. Subject to subsection 6, a person "receives" a notice or notification when:
a. It comes to that person's attention; or
b. It is duly delivered in a form reasonable under the circumstances at the place of
business through which the contract was made or at another location held out by
that person as the place for receipt of such communications. 6. Notice, knowledge, or a notice or notification received by an organization is effective
for a particular transaction from the time it is brought to the attention of the individual
conducting that transaction and, in any event, from the time it would have been
brought to the individual's attention if the organization had exercised due diligence. An
organization exercises due diligence if the organization maintains reasonable routines
for communicating significant information to the person conducting the transaction and
there is reasonable compliance with the routines. Due diligence does not require an
individual acting for the organization to communicate information unless the
communication is part of the individual's regular duties or the individual has reason to
know of the transaction and that the transaction would be materially affected by the
information.
41-01-11. (1-203) Lease distinguished from security interest. 1. Whether a transaction in the form of a lease creates a lease or security interest is
determined by the facts of each case. 2. A transaction in the form of a lease creates a security interest if the consideration that
the lessee is to pay the lessor for the right to possession and use of the goods is an
obligation for the term of the lease and is not subject to termination by the lessee, and:
a. The original term of the lease is equal to or greater than the remaining economic
life of the goods;
b. The lessee is bound to renew the lease for the remaining economic life of the
goods or is bound to become the owner of the goods;
c. The lessee has an option to renew the lease for the remaining economic life of
the goods for no additional consideration or for nominal additional consideration
upon compliance with the lease agreement; or
d. The lessee has an option to become the owner of the goods for no additional
consideration or for nominal additional consideration upon compliance with the
lease agreement. 3. A transaction in the form of a lease does not create a security interest merely because:
a. The present value of the consideration the lessee is obligated to pay the lessor
for the right to possession and use of the goods is substantially equal to or is
greater than the fair market value of the goods at the time the lease is entered;
b. The lessee assumes risk of loss of the goods;
c. The lessee agrees to pay, with respect to the goods, taxes, insurance, filing,
recording, or registration fees, or service or maintenance costs;
d. The lessee has an option to renew the lease or to become the owner of the
goods;
e. The lessee has an option to renew the lease for a fixed rent that is equal to or
greater than the reasonably predictable fair market rent for the use of the goods
for the term of the renewal at the time the option is to be performed; or
f. The lessee has an option to become the owner of the goods for a fixed price that
is equal to or greater than the reasonably predictable fair market value of the
goods at the time the option is to be performed.
4. Additional consideration is nominal if that consideration is less than the lessee's
reasonably predictable cost of performing under the lease agreement if the option is
not exercised. Additional consideration is not nominal if:
a. When the option to renew the lease is granted to the lessee, the rent is stated to
be the fair market rent for the use of the goods for the term of the renewal
determined at the time the option is to be performed; or
b. When the option to become the owner of the goods is granted to the lessee, the
price is stated to be the fair market value of the goods determined at the time the
option is to be performed.
5. The "remaining economic life of the goods" and "reasonably predictable" fair market
rent, fair market value, or cost of performing under the lease agreement must be
determined with reference to the facts and circumstances at the time the transaction is
entered.