Miscellaneous

Miscellaneous Mainuvta14to16misc

UVTA § 14. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT.

This [Act] modifies, limits, or supersedes the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001 et seq., but does not modify, limit, or supersede Section 101(c) of that act, 15 U.S.C. Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 U.S.C. Section 7003(b).

JayNote: Technical addition.

JayNote: I was on the UVTA Drafting Committee and sat through every minute of every meeting, and I still don't know why this stuff clutters up the Act. At any rate, it can be safely ignored in all but the rarest of voidable transaction cases.

§ 1(7). “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.

Reporter's Comment: 7. The definition of “electronic” is the standard definition of that term used in acts prepared by the Uniform Law Commission as of 2014.

§ 1(13). “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.

Reporter's Comment: 13. The definition of “record” is the standard definition of that term used in acts prepared by the Uniform Law Commission as of 2014.

Prefatory Note (UVTA 2014): Medium Neutrality. In order to accommodate modern technology, the references in the Act to a “writing” have been replaced with “record,” and related changes made.

JayNote: The term "record" is used in § 6(5)(ii). Practically, it is not an important definition.

§ 1(15). “Sign” means, with present intent to authenticate or adopt a record:

(i) to execute or adopt a tangible symbol; or

(ii) to attach to or logically associate with the record an electronic symbol, sound, or process.

Reporter's Comment: 15. The definition of “sign” is the standard definition of that term used in acts prepared by the Uniform Law Commission as of 2014.

UVTA § 15. SHORT TITLE.

This [Act], which was formerly cited as the Uniform Fraudulent Transfer Act, may be cited as the Uniform Voidable Transactions Act.

Reporter's Comment: 1. The 2014 amendments change the short title of the Act from “Uniform Fraudulent Transfer Act” to “Uniform Voidable Transactions Act.” The change of title is not intended to effect any change in the meaning of the Act. The retitling is not motivated by the substantive revisions made by the 2014 amendments, which are relatively minor. Rather, the word “Fraudulent” in the original title, though sanctioned by historical usage, was a misleading description of the Act as it was originally written. Fraud is not, and never has been, a necessary element of a claim for relief under the Act. The misleading intimation to the contrary in the original title of the Act led to confusion in the courts. See, e.g., § 4, Comment 10. The misleading insistence on “fraud” in the original title also contributed to the evolution of widely-used shorthand terminology that further tends to distort understanding of the provisions of the Act. Thus, several theories of recovery under the Act that have nothing whatever to do with fraud (or with intent of any sort) came to be widely known by the oxymoronic and confusing shorthand tag “constructive fraud.” See §§ 4(a)(2), 5(a). Likewise, the primordial theory of recovery under the Act, set forth in § 4(a)(1), came to be widely known by the shorthand tag “actual fraud.” That shorthand is misleading, because that provision does not in fact require proof of fraudulent intent. See § 4, Comment 8.

In addition, the word “Transfer” in the original title of the Act was underinclusive, because the Act applies to incurrence of obligations as well as to transfers of property.

{Note has been relocated to Section 12}

3. The retitling of the Act should not be construed to affect references to the Act in other statutes or international instruments that use the former terminology. See, e.g., Convention on International Interests in Mobile Equipment, art. 30(a)(3), opened for signature Nov. 16, 2001, S. Treaty Doc. No. 108-10 (referring to “any rules of law applicable in insolvency proceedings relating to the avoidance of a transaction as a … transfer in fraud of creditors”).

4. The 2014 amendments also make a correction to the text of the Act that is consonant with the change of the Act’s title. As originally written, the Act inconsistently used different words to denote a transfer or obligation for which the Act provides a remedy: sometimes “voidable” (see original § 2(d), §§ 8(a), (d), (e), (f)), and sometimes “fraudulent” (see original § 4(a), §§ 5(a), (b), § 9). The amendments resolve that inconsistency by using “voidable” consistently or deleting the word as unnecessary. No change in meaning is intended.

{Note 5 has been relocated to Section 12}

Prefatory Note (UFTA 1984): The Committee determined to name the new Act the Uniform Fraudulent Transfer Act in recognition of its applicability to transfers of personal property as well as real property, “conveyance” having a connotation restricting it to a transfer of real property. As noted in Comment 2 accompanying § 1 and Comment 9 accompanying § 4, however, the new Act, like the Uniform Fraudulent Conveyance Act, does not purport to cover the whole law of voidable transfers and obligations. The limited scope of the Uniform Fraudulent Conveyance Act did not impair its effectiveness in achieving uniformity in the areas covered. See McLaughlin, Application of the Uniform Fraudulent Conveyance Act, 46 Harv.L.Rev. 404, 405 (1933).

Prefatory Note (UVTA 2014): Likewise, the retitling of the Act is not intended to change its meaning. See § 15, Comment 1.

Prefatory Note (UVTA 2014): Style. The amendments make a number of stylistic changes that are not intended to change the meaning of the Act. For example, the amended Act consistently uses the word “voidable” to denote a transfer or obligation for which the Act provides a remedy. As originally written the Act sometimes inconsistently used the word “fraudulent.” No change in meaning is intended. See § 15, Comment 4.

JayNote: The name of the UFTA was changed because the term "fraudulent" attracted the baggage of misrepresentational "fraud" actions that have utterly nothing to do with fraudulent transfers. Essentially, this change corrects an error in the naming of such actions that relates at least as far back as the Fraudulent Conveyances Act 1571 (13 Eliz 1, c 5), also known as the Statute of 13 Elizabeth.

UVTA § 16. REPEALS; CONFORMING AMENDMENTS.

Reporter's Comment: If enacted by this State, the Uniform Fraudulent Conveyance Act should be listed among the statutes repealed.

(a) . . . .

(b) . . . .

(c) . . . .

Legislative Note: The legislation enacting the 2014 amendments in a jurisdiction in which the act is already in force should provide as follows: (i) the amendments apply to a transfer made or obligation incurred on or after the effective date of the enacting legislation, (ii) the amendments do not apply to a transfer made or obligation incurred before the effective date of the enacting legislation, (iii) the amendments do not apply to a right of action that has accrued before the effective date of the enacting legislation, and (iv) for the foregoing purposes a transfer is made and an obligation is incurred at the time provided in Section 6 of the act. In addition, the enacting legislation should revise any reference to the act by its former title in other permanent legislation of the enacting jurisdiction.




MISCELLANEOUS OPINIONS


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