Law profs who are teaching sales, sadistic transactions, or bankruptcy this Fall may wish to add to their materials the recent case of In re Erving Industries, Inc., in which a bankruptcy judge confronted the issue of whether electricity is a "good." The answer is important for a variety of reasons under commercial law. Might Article 2 apply (contract for services? or contract for sale of goods?)? Can the seller claim a PMSI in electricity under Article 9 (generally limited t0 goods)? Could a lender perfect its security interest in electricity by possession (perhaps if a good, but not an intangible)? Might the creditor seek a "priority claim" for electricity sold to a bankrupt debtor within days preceding the petition (chances increase if a good)?
I won't spoil the fun by disclosing the court's ILLUMINATING analysis and conclusion. PLUG INTO IT for yourself. Perhaps you'll be SHOCKED!
Suffice it to say that issues like this make the world of commercial law so much more riveting, entertaining, and rewarding than most, if not all, of the other subjects taught in our law schools today. Yes, indeed. You won't see any commercial law professors (the few, the proud, the anointed ones) rushing out to buy a happiness book. We've already got a copy on our desks. It's called the UCC.