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Commercial Law Outline
Definition is defined as where one transfers title to the buyer for a price Goods Specially manufactured goods; Unborn young of animals; Growing crops; Crops and fixtures which can be removed without material harm to the land and timber (removable by seller or buyer); and Minerals, and structures to be removed from land by the seller, not the buyer. Not "money in which the price is to be paid," "investment securities" (covered by Article 8); and "things in action." UCC § 2-105(1), Comment 1.
Merchants need to adhere to reasonable business standards and honesty in fact (e. g. consumer could be on notice)
Choice of Law Unlikely that a court will permit bifurcation of goods and services contracts – especially as one may be enforceable, and the other one may not me Unified goods and services contracts will probably be governed by the Uniform Commercial Code Specially manufactured consumer goods are goods The definition of consumer goods also appears in a different section as "household items"
CISG doesn't include consumers
Formalization Parole Evidence under Convention on the International Sale of Goods: -- will look to customs, and then to statutes
Gap Fillers For security interests parole evidence can be introduced, and security agreements are usually not integrated Mutual mistake can be reformed after-acquired property clause can be implied in some circumstances
Uniform Commercial Code – Sales Hierarchy of which will determine what "reasonable" is Deal Course of dealings Trade practice: Evidence of a relevant usage of trade offered by one party is not admissible unless and until he has given the other party such notice as the court finds sufficient to prevent unfair surprise to the latter.
Uniform Commercial Code - Leases Convention on the International Sale of Goods Common law real estate Magnuson-Moss
Warranties Express: doesn’t need to be in writing, but puffing isn’t a warranty Need to show Warranty was made Warranty was breached Warranty caused ahrm Extent of damages Abiltiy to fed off other affirmative damages
Three alternatives to warranty privity --
Implied title warranty implied Warranty of Merchantability Uniform Commercial Code – Sales Buyers in the ordinary courses of business Sellers in the ordinary course of business Pawnbrokers are never in the ordinary course of business
Uniform Commercial Code – Leases Finance lease have the arranties run to the seler not the lessor – can’t be a disgusied sale –special rules on page 84 in 3a-103-1-g
Convention on the International Sale of Goods Fit for the purpose, and purpose to transport
Common law real estate Magnuson-Moss Atty’s fees -- eliminate vertical privity problem
Reducing warranties Uniform Commercial Code – Sales Buyers in the ordinary courses of business Sellers in the ordinary course of business Pawnbrokers are never in the ordinary course of business
UCC takes two views (freedom of contract and protection) Unconscionability is for the prevention of oppression and unfair surprise Good fair is a factor, in determining if it was really their own bargain, and consideration should be given to the fact that the probabiolity is small that a real price is intended to be exchanged for a psuedo-obvligation Allocation of risk is okay Terms are merely an allocation of unknwon or undertrminable risks Courts resolution Sophistic and baragaining Implied warranty by price Usage of trade What the words said, and how clear it was
Local states lemon laws Convention on the International Sale of Goods can viciate them all FTC mandates conspicuous disclosure of a use car's warranty protection in plain view Uniform Commercial Code – Leases Can imply a warranty of merchantability if merchant
Convention on the International Sale of Goods Common law real estate Magnuson-Moss Relief is granted to a consumer who is damaged bvy the failyure of a warrantor to comply with any obligation under a written warranty Terms and conditions must be disclosd
Nonperformance Convention on the International Sale of Goods says taht excuse when unavoidable
Title -- leases have quiet enjoyment Warranty of Title -- note: no state has made article 9 effective before 2001 Uniform Commercial Code – Sales (seems to treat both merchants and non-merchants alike) Strict liability Need specific language to disclaim warranty Purchasers of a good get the title that the seller had A seller can't transfer that which it has not A seller can't transfer that which it has not
Voidable title: does not have good title but has the power to transfer title to a good faith purchaser for value (checks that bounce)
Uniform Commercial Code - Leases: covenant of enjoyment warranty is that no third party hold a claim or interest that arose from an act or omission of the lessor that will interfere with the enjoyment disclaiming must be specific unless the circumstances warrant otherwise if someone tricks someone into thinking that he could convey (lease) good title the lessee gets to regain possession, but rent is now paid to the true other rather than the trickster sublease buyer or subleases from an existing lessee can only have right to the goods that are no better than those of the existing lessee
Convention on the International Sale of Goods Implied warranty of title of the seller Excluded from CIG is any issue regard rights of third parties, because it doesn't want to regulate the property of individuals
Pre-Uniform Commercial Code: A party to a transfer could convey no better title to goods than he had Common law real estate Implied warranty is created by statute and is impled with a transfer of deed Warranty of quiet enjoyment Warranty of further assurance Often handled by title insurance
Magnuson-Moss
Entrustment differnts from voidable title in that the buyer must be in the ordinary course of business (not just a good faith purhcaser for value) and the seller must be a merchant in that type of good Uniform Commercial Code – Sales (seems to treat both merchants and non-merchants alike) Any estrustment of goods to a merchant of those goods, transfers all rights regardless of conditions -- if they sell it out from under you, you can't get it back from the new owner Knowledge by the buyer of the other title ends this
Uniform Commercial Code - Leases Convention on the International Sale of Goods UK law Does not allow an innocent buyer to prevail against the entruster
Common law real estate Magnuson-Moss
Non-performance Uniform Commercial Code – Sales UCC speaks in terms of seller's excuse Identified goods -- when the contract requires for its peerformance goods identified when the contract is made. It isnb't enough the seller happened to identify particular goods for the buyerm they have to be unique. Fungible goods can only be covered under 2-615 In the case of total loss of identified goods, the entire contract is voided In the case of partial loss, the buyer can inspect and have the choice of voiding. -- and can make due allowance for the injury Risk of loss is still on the seller, even if he qualifies for exuse
commodities Default: seller who wants to claim has to notify the buyer of any claim by a justifiable excuse An excused non-delivery is not a breach
Definition of force majeure is something that could not be avoided by good-faith compliance and was beyuond control Seller's requirements Performance has become impractical Inapplicablity was due to soemthing that the parties exprelly or impledly agreed would charge the promisor's duty to perform The promisor did not assume the risk that the continbgency would occur The promisor seasiably notified the promisee of the delay in delivery or that the delivery would not occur at all
Multiple buyers In cases where a seller that is claim excuse under §2-615, has more than one buyer, and has a limited capacity to perform, the seller must allocaiton production and delivery amopjng its customers in a fair and reasonable manner American courts don't like to find themselves rewriting the contract to make for a more equitable distribution of goods given a shortage -- German, Hungarian do Theorhetical problem with allowing for excuse given significant priace increae Would establish a line by which oen is responsible for below, and one from above Anything else would be the court rewriting the contract.
Some courts have interpreted the defence in terms of commercial impracticbility rules
Party made law Parities can contract out of this -- for the purposes of a new force Majure cause
Uniform Commercial Code - Leases Hell or highwater for fiance lease Nonconcumer finance lease myust either be terminated or go forward with no reduction in rent
Identified goods excuse
Convention on the International Sale of Goods Excuses a party from performance when the inability was due to an impediment beyond his control CISG applies to both buyers and sellers CISG applies to all obligations, not just delivery Excuse only happens when a third party supplies also has a valid basis of exuse
Common law real estate Magnuson-Moss
Equitable remedies Buyer’s when seller breaches Goods Common law: only available when inadequate Uniform Commercial Code: unique, same policy as before but more liberal, or other proper circumstance’s Hard to describe goods as unique If price is the only unique thing, than a decree for specific performance would be price-based Disruption that cover would mean would be a reason for specific performance Test for unique: total situation which characterizes the contract. Output requirements In the old days things were contracts for sale
Right to replevin: If there goods are reasonably unavailable and the goods have been identified to the contracts identifiable goods may be used for a security interst
Specific performance decrees are like contracts and the parties have to show that they can and will perform them Can get specific performance in bankruptcy
If unsecured Insolvency is discovered before delivery: can stop delivery before arrival. Seller’s right ends when the buyer gets the goods or is govern acknowledge my a third party carrier or bailer that the buyer now has the possession of the goods Insolvency: Reclamation demand: 10 days of the buyer’s receipt of the goods if insolvent. No limit if misrepresentation -- seller’s rights are subordinated to a good faith purchaser for value If filing for bankruptcy: reclamation demand must be in writing, bankruptcy court may choose to satisfy the sellers’ valid reclamation right with a lien or administrative expense claim, rather than goods, time limit for sellers’ demand is not removed in bankrucy even when there is a misrepresentation solvency (even in writing) – Uniform Commercial Code 10 day limt is 20, sellers’ reclamation right in subject ato all of the limits that exist on the right outside of bakrucy Buyers who pre-pay and the seller has become insolvent, canrevoer if the seller becomes insolvent within ten day after receipt of the first installment on their price – goods must be identified
Validity of LDC Uniform Commercial Code: if things are reasonable enforceable in the light of anticipated or actual harm party that wrote the LDC has the burden of showing the reasonableness of it LDC can be subject to foffset based on actual damages or enrichment. Minority: could show damages in repudiation of a contract
Lost profit buyer (need acceptance of the goods or valid rejection, and there is no cover) – e. g. benefit of the bargain (on in the position that would have been Usually most of the warranties in the Uniform Commercial Code are not disclaimed, except for consequential damages Types of allowed consequential damages (from a seller’s breach) Of any kind incuding preuly economic loss of which the seller had reason to know of damges caused in fact would could not be prevented by cover or otherwise
"super consequential damages" – must show personal injury or proper damges (no econmoic lsses) priximate cause
incidental damages can be somewhat larger (e. g. reasonableness test) Lost proft only applies to what one is contractually bound to do Has acceptance occurred -- dispies arised over whether the bueyr waited to long to cover? The goods that th buyer purchased as a cover were substantially the same as the contrac goods, and the buyer didn’t pay too much for the contract goods Acceptance – if it is too late to revoke acceptance, the buyer’s damages are limited to breach of warranty Can deduct, for less value, but must give proper notice If the buyer has paid the piurcahse price, the buyer may hold the goods as security for repayment of tis purchase price as well as for any expenses – and thebuyer cna resell the goods in a manner as an aggrieved seller -- damages are [return of price paid by buyer + cost + expense savedof cover]-[conract price – incidental damages]-consequential damges, _ Good faith from covering is without delay or reasonable price --
Not yet acceptance – or justifiable refused Must be given in a reasonable time after the the buyer discovers orshould have disvered the breach Incidental damages (Value of conforing – value of nonconfirming )(+ incidental + consequential)
no goods (or goods rightfully dumped back) right to cover -- it is optional -- buyer ends up getting the goods, and the seller pays the buyer for any additiona cost that the buyer incudrred in getting them. right to contract market damages
timing issue damges mesaure are set at the market priac at the time tha tth ebuyer leanred of the breach -- may not be the price of the goods at the originally primiced perforamces. Place of perforamce – place of arrival of goods, unless the buyer rejects or rvokes accpetance after arrival Breaches occur as of recent modificaitons
nominal damages may be awarded if the court finds that there was an overall benefit Need to fix damages on the date of breach Some court finds that where a market price is too wild, whenver the seller can prove that the actual loss was less What the buyer does is irrelevant, the damages are fixed on the date of breach based on spot transfer
Additional problems for leases Rights to cover "lessor may otherwise default" -- lessor can recover the cost of putting things back in working order new leases must be substantially similar to be considered a cover
for a new lease to cover it has to be substantially sinmilar things would be discounted to present value – not in older Uniform Commercial Code number 2 leaes: a buy can accept a lease of a defective good and give it a haircut discounte back
Convention on the International Sale of Goods Sets up dichotomy beween avoided contracts and non-avoided contracts Can onyl declare a goods to be avoided if breach is funamental, or if delivery is not on time or place, or within a contraually agreed grace period Under Convention on the International Sale of Goods, if a conract is avoided, both parties are relieved, but damges will be assessed
Specific performace: will be granted if the buyer doesn’t have the good year Specific performance must be in line with the state courts law (which would be Uniform Commercial Code) Specific performance to remedy a funadmental breach is available, but must be in line with local law (so would get the Uniform Commercial Code anyway)
Buyers have choice between contract-market and contract market Consequential damages must be reasonable to know, even if they are preesonal injury
Real estate Refusing to close can be granted specific performance Have to show that money is inadaquate (not a problem with real estate) buyer must be able to perform
can be paid for higher out of pocket costs usually houses are sold as is the courts have refused to grant specific performance in bate and switches
lost volume seller’s remedies definition of lvs: those who can show that the the contract-market measure is inadauate to put the seller in as good a postion as peromrace would have done (e. g. lose a profit) must show that the sale would have occurred e. g. the only reason that the sales were made was that the buyer breached seller was no operating at full capacity and could have made additional sales if the bueyr had not breached (e. g. retail toy stores wouldn’t be eligible)
definition of profit (including reasonable overhead) together with any incidental damages, due allowance for costs incurrend, and credit for proceeds of sale profit is defined as contract price minus seller’s direct costs (variable costs) minus allocatable share of the sellers’ fixed costs or overhead direct costs are also variable costs
we need to allocate the fixed costs these clauses were probably put in for a component parts manufacture who has stopped production in midstead and haas sold things for scrap can resell for scrap
must show that the seller’s aabilityt to seell these goods was greater than the current buyer’s demand for them
completing of manufature when stopped mistead how much more would it cost how much would it get for the scrap how much the seller could get from the third party
bop is on the defendant to show that decision to stop is reasonable
Seller’s remedies: put the aggrived back where they were. Consensual shoudln’t eb allowed unless proviosn in the code codal Types of breaches by buyers Wrongfully reject goods Wrongfully revoke acceptance Fail to make a payment when due Anticpatoruoly repduiate the conract
Types of remedies Sellers ability to limit damges Withhold delivery Stop delivery by aby bailee Indentify goods to the contract in case of anticpatory repudiation
Resel and recover damges Recover contrac-tmarket damges (or lost profits) Sue for price Can be said to be a right of specific performance for the seller When available – buyer can not have paid the price Where the buyer can not have accpeted the goods Wherer conforming goods, whether or no accpeted have been lost or damaged wihing a commerically reasonable time after the risk of loss has passed Where the seller has identified goods to the contrac and there is no reasonable preopect of reslelling them to a third party for a reasonable price
Seller must hold for the buyer the goods, and if the price is paid, the buyer is entitled. If while the seller is holding the goods for the buyer, resle beomcse psoible, than the seller may resell and must deduct from its action for price the proceeds of any resale
Sellers for price can sue for incidental damges Resale samges, if the buyer breachs, the seller identifies, notices give, and seller resells the goods at either a public or priact sale
Delay issue is still ripe In some case, an immeadite suit, ratther than one immedaitely afterwards might still be ripe, if the seller is uable after reaosnbale effort to resell the goods at a reasonle price or the circumstances reasonable indicate that such an effort would be unavailing
Cancel the contract – cancelling apry aleways retain right to sue for breach
Lessor Right to repossess gooods is a standard remedy Specifically says that the lessor can sue on contractually agreed for remedies Lessors’s price is unpaid rent plus the the present value of future rent Once the lessor sue for the rent, i must hold the lease goods for the lessee for the reamining term of th lease In the even of a release thhan the original lessee gets credit for the revenue If the leasee pas judgment forther rent, it is entitled to possesion and use of the leased goods for the reaminder of the term Kessir who sues for rent is eligible for incidental damages
Resale damage formula: (accrused but unpaid rent on the original lease as of the date of the new lease term) +( present value of the total remaining payment for the original lease date – present value of the total in the new lease for the term that is comparable t the reminder of the priginal lease) + incidental damages – expesnes saved The second lease can be "substantially similar"
aggreived lessors can sue for los profits lessors can sue for damages to the salvage value
damages under Convention on the International Sale of Goods (distinction between avoided breached contract and non avoided) can only avoid withy a fundamental breach -- avoidenace relieves of dutues but retains right to sue Convention on the International Sale of Goods treats the buyers "cover" and the "seller" resale about the same Seller can get specific performance, bu subject to Uniform Commercial Code
Real estate Somes states, depding on the terms of the contracts agallow the selelr to recover contracts-market damges but only when the seller can prove those damages( an dwhere the seller returns the deposit Sellers are usualyl not entited to contracts-resael danages as such Consequential: Might not be able to get damages for unforseeable damages Usually for costs associated with resale
Can reverse rules about atty’s fees
Risk of loss (by 3rd parties) Standard terms FOB: Seller’s Place aka Shipment Contract (default) Risk shifts when the goods are delivered to the carrier and the buyer is responsibelf ro paying the cost of fright Must put the goods in possession of carrier Make a reaosnbale KI for their transportion Delivery any documetn necessary to enable buyer to take delivery Promply notify buyer of shipment
FOB: Buyer’s Place aka destinartion contract Risk shifts when the goods arrive at the buyer, and the seller is responsibel for paying the cost of the frigt Put goods in possesion of carrier Risk passes when buyer erevies a negotaibel docuemtn of title When bailee acknowelddg to the buyer th ebuyer’s right to possess of the ogoods When the buyer recives a non-negotaible document of title
Make a reaoble conract for transportion Delivery any docuemnt necessary to enable the buyer to take delivery Promprly notfiy the buyer of shipments
Ther ehas to be an actually injury for damages due to unreable conduct If a buyer rightfully revokes acceptance, than the buyer can reate the risk of loss as if it rested on the seller from the beginning, but only to the extent of a deficity in the buyer’s insurance coverage
Default risk of loss rule for leases Risk of loss never passes except for finance leases (otherwise the same)
Convention on the International Sale of Goods on risk of loss Parities can opt out 13 incoterms E (lowest level of respobibility for seller) F (seller has at least the responsiblility of delivery the goods to the carrier, at which point the buyer will have the risk of loss) INCO terms on page 194
Parities must specific Uniform Commercial Code or INCOTERMS Default rules Goods are to be delivered to the buyer but the goods are not in transit defaults to a Uniform Commercial Code shipment contracts Goods already in transit – risk passes to buyer when contracts is conclued, but the risk may pass retroactively if the circumstances so indicate and if the sleler did not know or have reason to know that the goods were lsot or damged at the time the contract was conlcided Under Convention on the International Sale of Goods if the buyer has committed a fundamental breach, thebuyer retains all remeides, including the right to avoid
Real estate risk of loss Common law: risk of loss during the closing is on the buyer (could be based on seperation of title, and a change in the rol) Insurance proceeds would need to be held in trust for the buyer Early possession doesn’t change thigns
Closing goods Acceptance – rejection has to be rasonable time -- "perfect tender rule" Affiramtive signifcation Failure to reject Act by buyer that is inconsitant with sellers’ onwership -- must state reason for rejection Rights to cure creaee commerical leeway
Installment contracts Buyer may only reject an installment if the nonconfimity impairs an insllment and can’t be cured
Revocation of acceptance Non-conformity must subtantilly impari value of goods to buyer Must do revoke reasonable after discover
Assurances might cause non-confirmity Uniform Commercial Code isn’t clear on whehter the revoking buyer and the rejecting buyer have to give the same chance to cure -- most courts allow the seller to cure Shaken faith doctine – that the nature of the product may be legitimately doctrine – e. g. seller can’t unilatelly define what constites an accetpabel cure
Keases Finance lease can revoke accepntace of leased goods where the fiure to discover the nonconnformity was reasobaly induced by the leesor’s assurances - still have direct right agins t supplier
Convention on the International Sale of Goods Can revoke based on fundamental breach or something being too late
Unconscionability Uniform Commercial Code – Sales Vagueness Determined as a matter of law Measured at time of contracting
Uniform Commercial Code - Leases Accent is on procedural unconscionability in the forming of the contract Attorneys fees can be included
Convention on the International Sale of Goods CISG doesn't include consumers -- so there is no unconscionability
Common law real estate Magnuson-Moss
Checks -- federal rules will pre-empt UCC Person who writes the check is defined as the drawrer "Drawee" or "payor bank" means a person ordered in a draft to make payment. "drawn" – act of writing a check on an account "Acceptor" means a drawee who has accepted a draft. "Drawer" or "issuer" means a person who signs or is identified in a draft as a person ordering payment. "depository bank" means the first bank to take an item even though it is also the payor bank, unless the item is presentefor immediate payment over the counter;
pre-accepted payment is a certified check when a bank should pay cashing: banks must pay immeadiate , over the counter chekcs on-us (third party): midnight of the next business day (e. g. intratransfer) .bank can charge-back , and can reallocate the funds. If the money was withdrawn the bank can sue to revoer provisional settlement is the time at which the moneu is in the account but it can be cahrged back
a bank should pay when the customer has payment (by writing a check) -- all that has to happen is the bank has to property transfer the debt to the paying institution -- doesn't have to pay if it is stolen if the customer ahs authorized if they wrote a check as soon as the check is cashed or brought to the imtermediary, the intermediary is entiteled to encofrce
problems overdrafts at the payor banks option it can charge the account at the payor bank’s option it can refuse to pay banks can waive out of this by contractually ageeeing to pay overdrafts
fees code doesn’t regulate courts have looked at unconscionability at bad faith and at how mucgh the penalites exceeded the cost
stop-payment with timely notices, the bank no longer has the right to pay
revering the charges for improper transaaction bank is subrogated to the right of the payee of the check bank can asser tht payee’s rights agins the drawer as a dfence to the bank’s obligation to recredit the account (e. g. bank steps into the shoes of the payee) – this might be practically quite limited
usaully banks shoiuld reverse banks have to returnany fees in connection with transactions, if penalties result wrongful dishonor: penalties include proximate damages
indorsements bring with them liability people can indorse without recourse -- just to pass on loss can be passed up the chanhain transfer warranties (presentment warranties only run to the payor bank) – transfer warranties only run to ealier transferees in the chainof collection (these include forged drawer’s signature)
forgery: of not authorized, paur bears the loss – and payor bank can seek recover from the person to whom or for whose benefit the payment was mdade, unless it was taken in good faith and value loss can be passed back to the earlierst possible person after the forgery -- payor bank shouldn’t have paid, but it can revoever, but it can’t recover from someone who took for goof faith and vlue absent a valid indorsement by the payee, no one can become a person entitled to enforce a check
presenting bank that took a chekc from a forger would have breached its presentedment waranty to the payor bank warranties of presentmetn and transfer check this! Negligence can pout a burden ofn people Bank statement may play a part Forger goes to the victim
warranties to sue on can also sue for a breach of presentment warranty requires actual knowledge, rather than notice
when the bank must pay local cash withdrawls from local chcks: first $100 on the first day, next $400 on the second day, and everything else on the third day noncash withdraws fro local checks: bank must make $100 available on direst business day after the banky day on which the funds were deposited . Rest of the funds on second business day
nolocal cash withdrawls from nonlocal checks: first $100 on first day, $400 on fith day, and the rest on the sixth nocash withdraws from non-local checks: : bank has to make $100 on the firs tbusiness day, but it has until 5th business day to make the reatining funds vailable 12 cfr 229.12c
exceptions for new accounts, large deposits, faud
clearing reg cc deadline for returning checks: second business day for local fourth for nonlocal bank has to depsoit the check in the mail by midnight of day it receives the chekc exceptions midnight deadling waived as long as the payor delviers the check to the transfer by the first banking day after the deadline can have an extra day if using a fast delviery service
notice of non-payment must get notice of non-paument by 4pm on the second business day after the banking day on which the payor bank received the check
truncation – not in NY
federal reserve msot expensive slower when deadline for dishonor pass, things are final
clearing houses: local checks assumtion that things will be honored commputaiton of ent position clearing houses have a time by which things have to be declined no Uniform Commercial Code requirement of decision to dishonor (e. g. the deadline is satisifed if the bank just puts the chek in the mail
direct-send (also correspondant bank relationships_)
wire transfers CHIPS and generic beneficiary bank can reject order, as the sending bank might e insolvent -- acceptance is final, and must pay the beneficiary beneficiary’s bank acepts a payment order at the earlier of the folowing 1_ when the bank pays the beneficiary or when the bank notifies the beneficiary of recippt of the order that the account has been debeited
if something goes to the wrong arrount, due to error of the sender, it requries action in the local courts most bodies of law rely on common law restitution if the other (wrongfully debted) party has an independant right of payment can be applied -- might be more complicated if there are restricted accoutns
if someone gains access to a password, the bank is responsible
doomsday provision banks contribute share of the swhorfall if two large participants fail,than the transactions gets unwound
Fedwire Usually to the credit of a third party -- debt cards exluded under efta Sender bank and a receiving bank Originaating bank can collect from a depositer who didn’t have enough funds Federal Reserve, when it receives the payment order, has no choice but to avoid pay, and the fed becomes obligated Payment can be excused if the fed screes up
Banks have to cover any overdrafts by the end of the day -- check this .15 fee for the amount of the overdraft, large overdrafts require regulatory supervision
debit provision -- takes a little while longer of the other bank is in a different fed district no signficance to refusal provision of chips – the beficiary’s bank become sobligated to pay the amount of the fedwire transfer fed seems to take the risk probably very little reason to go to equity in the case of finality of payment
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