[Rev. 6/29/2024 2:59:45 PM--2023]
CHAPTER 104B - UNIFORM COMMERCIAL CODE—ARTICLE 12-CONTROLLABLE ELECTRONIC RECORDS
NRS 104B.12101 Short title.
NRS 104B.12102 Definitions.
NRS 104B.12103 Relation to Article 9 and consumer laws.
NRS 104B.12104 Rights in controllable account, controllable electronic record and controllable payment intangible.
NRS 104B.12105 Control of controllable electronic record.
NRS 104B.12106 Discharge of account debtor on controllable account or controllable payment intangible.
NRS 104B.12107 Governing law.
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NRS 104B.12101 Short title. This Article may be cited as the Uniform Commercial Code—Controllable Electronic Records.
(Added to NRS by 2023, 3169)
1. In this Article:
(a) “Controllable electronic record” means a record stored in an electronic medium that can be subjected to control under NRS 104B.12105. The term does not include a controllable account, a controllable payment intangible, a deposit account, an electronic copy of a record evidencing chattel paper, an electronic document of title, investment property, a transferable record or an electronic record that is currently authorized or adopted by a domestic or foreign government and is not a medium of exchange that was recorded and transferable in a system that existed and operated for the medium of exchange before the medium of exchange was authorized or adopted by a government.
(b) “Qualifying purchaser” means a purchaser of a controllable electronic record or an interest in a controllable electronic record that obtains control of the controllable electronic record for value, in good faith, and without notice of a claim of a property right in the controllable electronic record.
(c) “Transferable record” has the meaning provided for that term in:
(1) Section 201(a)(1) of the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7021(a)(1), as amended; or
(2) Subsection 1 of NRS 719.330.
(d) “Value” has the meaning provided in subsection 1 of NRS 104.3303, as if references in that subsection to an “instrument” were references to a controllable account, controllable electronic record or controllable payment intangible.
2. The following definitions in Article 9 apply to this Article:
“Account debtor.” NRS 104.9102.
“Chattel paper.” NRS 104.9102.
“Controllable account.” NRS 104.9102.
“Controllable payment intangible.” NRS 104.9102.
“Deposit account.” NRS 104.9102.
“Investment property.” NRS 104.9102.
3. Article 1 contains general definitions and principles of construction and interpretation applicable throughout this Article.
(Added to NRS by 2023, 3169)
NRS 104B.12103 Relation to Article 9 and consumer laws.
1. If there is a conflict between this Article and Article 9, Article 9 governs.
2. A transaction subject to this Article is subject to:
(a) Any applicable rule of law that establishes a different rule for consumers;
(b) Any other statute or regulation that regulates the rates, charges, agreements and practices for loans, credit sales or other extensions for credit; and
(c) Any consumer-protection statute or regulation.
(Added to NRS by 2023, 3170)
NRS 104B.12104 Rights in controllable account, controllable electronic record and controllable payment intangible.
1. This section applies to the acquisition and purchase of rights in a controllable account or controllable payment intangible, including the rights and benefits under subsections 3, 4, 5, 7 and 8 of a purchaser and qualifying purchaser, in the same manner this section applies to a controllable electronic record.
2. To determine whether a purchaser of a controllable account or a controllable payment intangible is a qualifying purchaser, the purchaser obtains control of the account or payment intangible if it obtains control of the controllable electronic record that evidences the account or payment intangible.
3. Except as provided in this section, law other than this Article determines whether a person acquires a right in a controllable electronic record and the right the person acquires.
4. A purchaser of a controllable electronic record acquires all rights in the controllable electronic record that the transferor had or had power to transfer, except that a purchaser of a limited interest in a controllable electronic record acquires rights only to the extent of the interest purchased.
5. A qualifying purchaser acquires its rights in the controllable electronic record free of a claim of a property right in the controllable electronic record.
6. Except as provided in subsections 1 and 5 for a controllable account and a controllable payment intangible or law other than this Article, a qualifying purchaser takes a right to payment, right to performance or other interest in property evidenced by the controllable electronic record subject to a claim of a property right in the right to payment, right to performance or other interest in property.
7. An action may not be asserted against a qualifying purchaser based on both a purchase by the qualifying purchaser of a controllable electronic record and a claim of a property right in another controllable electronic record, whether the action is framed in conversion, replevin, constructive trust, equitable lien or other theory.
8. Filing of a financing statement under Article 9 is not notice of a claim of a property right in a controllable electronic record.
(Added to NRS by 2023, 3170)
NRS 104B.12105 Control of controllable electronic record.
1. A person has control of a controllable electronic record if the electronic record, a record attached to or logically associated with the electronic record or a system in which the electronic record is recorded:
(a) Gives the person:
(1) The power to avail itself of substantially all the benefit from the electronic record; and
(2) Exclusive power, subject to subsection 2, to:
(I) Prevent others from availing themselves of substantially all the benefit from the electronic record; and
(II) Transfer control of the electronic record to another person or cause another person to obtain control of another controllable electronic record as a result of the transfer of the electronic record; and
(b) Enables the person readily to identify itself in any way, including by name, identifying number, cryptographic key, office or account number, as having the powers specified in paragraph (a).
2. Subject to subsection 3, a power is exclusive under sub-subparagraphs (I) and (II) of subparagraph (2) of paragraph (a) of subsection 1, even if:
(a) The controllable electronic record, a record attached to or logically associated with the electronic record or a system in which the electronic record is recorded limits the use of the electronic record or has a protocol programmed to cause a change, including a transfer or loss of control or a modification of benefits afforded by the electronic record; or
(b) The power is shared with another person.
3. A power of a person is not shared with another person under paragraph (b) of subsection 2 and the person’s power is not exclusive if:
(a) The person can exercise the power only if the power also is exercised by the other person; and
(b) The other person:
(1) Can exercise the power without exercise of the power by the person; or
(2) Is the transferor to the person of an interest in the controllable electronic record or a controllable account or controllable payment intangible evidenced by the controllable electronic record.
4. If a person has the powers specified in sub-subparagraphs (I) and (II) of subparagraph (2) of paragraph (a) of subsection 1, the powers are presumed to be exclusive.
5. A person has control of a controllable electronic record if another person, other than the transferor to the person of an interest in the controllable electronic record or a controllable account or controllable payment intangible evidenced by the controllable electronic record:
(a) Has control of the electronic record and acknowledges that it has control on behalf of the person; or
(b) Obtains control of the electronic record after having acknowledged that it will obtain control of the electronic record on behalf of the person.
6. A person that has control under this section is not required to acknowledge that it has control on behalf of another person.
7. If a person acknowledges that it has or will obtain control on behalf of another person, unless the person otherwise agrees or law other than this Article or Article 9 otherwise provides, the person does not owe any duty to the other person and is not required to confirm the acknowledgment to any other person.
(Added to NRS by 2023, 3170)
NRS 104B.12106 Discharge of account debtor on controllable account or controllable payment intangible.
1. An account debtor on a controllable account or controllable payment intangible may discharge its obligation by paying:
(a) The person having control of the controllable electronic record that evidences the controllable account or controllable payment intangible; or
(b) Except as provided in subsection 2, a person that formerly had control of the controllable electronic record.
2. Subject to subsection 4, the account debtor may not discharge its obligation by paying a person that formerly had control of the controllable electronic record if the account debtor receives a notification that:
(a) Is signed by a person that formerly had control or the person to which control was transferred;
(b) Reasonably identifies the controllable account or controllable payment intangible;
(c) Notifies the account debtor that control of the controllable electronic record that evidences the controllable account or controllable payment intangible was transferred;
(d) Identifies the transferee, in any reasonable way, including by name, identifying number, cryptographic key, office or account number; and
(e) Provides a commercially reasonable method by which the account debtor is to pay the transferee.
3. After receipt of a notification that complies with subsection 2, the account debtor may discharge its obligation by paying in accordance with the notification and may not discharge the obligation by paying a person that formerly had control.
4. Subject to subsection 8, notification is ineffective under subsection 2:
(a) Unless, before the notification is sent, the account debtor and the person that, at that time, had control of the controllable electronic record that evidences the controllable account or controllable payment intangible agree in a signed record to a commercially reasonable method by which a person may furnish reasonable proof that control has been transferred;
(b) To the extent an agreement between the account debtor and seller of a payment intangible limits the account debtor’s duty to pay a person other than the seller and the limitation is effective under law other than this Article; or
(c) At the option of an account debtor, if the notification notifies the account debtor to:
(1) Divide a payment;
(2) Make less than the full amount of an installment or other periodic payment; or
(3) Pay any part of a payment by more than one method or to more than one person.
5. Subject to subsection 8, if requested by the account debtor, the person giving the notification under subsection 2 seasonably shall furnish reasonable proof, using the method in the agreement referred to in paragraph (a) of subsection 4, that control of the controllable electronic record has been transferred. Unless the person complies with the request, the account debtor may discharge its obligation by paying a person that formerly had control, even if the account debtor has received a notification under subsection 2.
6. A person furnishes reasonable proof under subsection 5 that control has been transferred if the person demonstrates, using the method in the agreement referred to in paragraph (a) of subsection 4, that the transferee has the power to:
(a) Avail itself of substantially all the benefit from the controllable electronic record;
(b) Prevent others from availing themselves of substantially all the benefit from the controllable electronic record; and
(c) Transfer the powers specified in paragraphs (a) and (b) to another person.
7. Subject to subsection 8, an account debtor may not waive or vary its rights under paragraph (a) of subsection 4 and subsection 5, or its option under paragraph (c) of subsection 4.
8. This section is subject to law other than this Article which establishes a different rule for an account debtor who is an individual and who incurred the obligation primarily for personal, family or household purposes.
(Added to NRS by 2023, 3171)
1. Except as provided in subsection 2, the law of a controllable electronic record’s jurisdiction governs a matter covered by this Article.
2. For a controllable electronic record that evidences a controllable account or controllable payment intangible, the law of the controllable electronic record’s jurisdiction governs a matter covered by NRS 104B.12106 unless an effective agreement determines that the law of another jurisdiction governs.
3. The following rules determine a controllable electronic record’s jurisdiction under this section:
(a) If the controllable electronic record, or a record attached to or logically associated with the controllable electronic record and readily available for review, expressly provides that a particular jurisdiction is the controllable electronic record’s jurisdiction for purposes of this Article or the Uniform Commercial Code, that jurisdiction is the controllable electronic record’s jurisdiction.
(b) If paragraph (a) does not apply and the rules of the system in which the controllable electronic record is recorded are readily available for review and expressly provide that a particular jurisdiction is the controllable electronic record’s jurisdiction for purposes of this Article or the Uniform Commercial Code, that jurisdiction is the controllable electronic record’s jurisdiction.
(c) If paragraphs (a) and (b) do not apply and the controllable electronic record, or a record attached to or logically associated with the controllable electronic record and readily available for review, expressly provides that the controllable electronic record is governed by the law of a particular jurisdiction, that jurisdiction is the controllable electronic record’s jurisdiction.
(d) If paragraphs (a), (b) and (c) do not apply and the rules of the system in which the controllable electronic record is recorded are readily available for review and expressly provide that the controllable electronic record or the system is governed by the law of a particular jurisdiction, that jurisdiction is the controllable electronic record’s jurisdiction.
(e) If paragraphs (a) to (d), inclusive, do not apply, the controllable electronic record’s jurisdiction is the District of Columbia.
4. If paragraph (e) of subsection 3 applies and Article 12 is not in effect in the District of Columbia without material modification, the governing law for a matter covered by this Article is the law of the District of Columbia as though Article 12 were in effect in the District of Columbia without material modification. In this subsection, “Article 12” means Article 12 of the Uniform Commercial Code Amendments (2022).
5. To the extent subsections 1 and 2 provide that the law of the controllable electronic record’s jurisdiction governs a matter covered by this Article, that law governs even if a matter or transaction to which the matter relates does not bear any relation to the controllable electronic record’s jurisdiction.
6. The rights acquired under NRS 104B.12104 by a purchaser or qualifying purchaser are governed by the law applicable under this section at the time of purchase.
(Added to NRS by 2023, 3173)