Okla. Stat. tit. 12A § 2A-308

Current through Laws 2024, c. 453.

Section 2A-308 - 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 article 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 article 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.

Okla. Stat. tit. 12A, § 2A-308

Added by Laws 1988, HB 1683, c. 86, § 38, eff. 11/1/1988.

Oklahoma Code Comment

Subsection (3), as the Official Comment indicates, is intended to deal with the common situation in leasing practice where an owner sells goods to a buyer but retains possession of them under a lease between the buyer as lessor and the seller as lessee. Under the laws of many states, this sale-leaseback transaction would be subject to attack as a fraudulent transfer due to the retained possession. For example in Oklahoma prior to 1986, see 24 Oklahoma Statutes § 6 and Meeks v. Central National Bank. 672 P.2d 327 (Okla.App.1983). Even after 1986 under 24 Oklahoma Statutes § 116(B)(2) (the Oklahoma Uniform Fraudulent Transfers Act), retention of possession of property transferred after the transfer is a factor to be considered in determining the actual intent of a debtor to hinder, delay or defraud any creditor of the debtor.

To establish the certainty necessary in connection with this common leasing transaction, subsection (3) overrides 24 Oklahoma Statutes § 116(b)(2) and 12A Oklahoma Statutes § 2-402(2) to the extent they would apply to a sale-leaseback transaction and render it invalid even though the buyer bought for value (UCC §1-201(44)) and in good faith ( § 2A-103(3)). If either value or good faith is lacking, the creditor may prevail. See § 2A-307(2).

The 1991 amendments make no change here.