Examining UCC Title Battles Through a Torts Lens

Abstract

For nearly seventy-five years, commercial law scholars and commentators have debated whether the foundations of commercial law, and especially the rules of title, are anchored in the principles of property or contracts. This Article argues that the property vs. contracts debate about the foundations of commercial law is missing a key piece: namely, the significant theoretical role that tort concepts play in the debate, particularly the role of comparative negligence whenever there is a title dispute involving the sale of goods or the negotiation of commercial paper. This Article further contends that comparative negligence principles are also important in resolving risk of loss questions in sales and commercial paper, as these questions are in some sense just a special variation of the standard title dispute.

Keywords: Title disputes, commercial law, comparative negligence, contracts, property, UCC, sales, commercial paper