PER CURIAM:
The action of the panel1 is reversed and the judgment of the District Court is affirmed.
The court en banc adopts as its opinion the dissenting opinion of Judge Godbold2 with the additional comments which we set out in the margin.3
The judgment of the District Court is
affirmed.
APPENDIX
Opinion of Circuit Judge GODBOLD (510 F.2d at 154)
I dissent.
This case raises one primary question: under the Uniform Commercial Code as adopted in Texas, is the interest of an unpaid cash seller in goods already delivered to a buyer superior or subordinate to the interest of a holder of a perfected security interest in those same goods? In my opinion, under Article Nine,1 the perfected security interest is unquestionably superior to the interest of the seller. Moreover, the perfected lender is protected from the seller’s claims by two independent and theoretically distinct Article Two provisions. My result is not the product of revealed truth, but rather of a meticulous and dispassionate reading of Articles Two and Nine and an understanding that the Code is an integrated statute whose Articles and Sections overlap and flow into one another in an effort to encourage specific types of commercial behavior. The Code’s overall plan, which typically favors good faith purchasers,2 and which encourages notice filing of nonpossessory security interests in personalty through the imposition of stringent penalties for
[1242]*1242APPENDIX — Continued
nonfiling, compels a finding that the perfected secured party here should prevail.
My brothers have not concealed that their orientation in the case before us is to somehow reach a result in favor of the sellers of cattle, assumed by them to be “little fellows,” and against a large corporate lender, because it seems the “fair” thing to do. We do not sit as federal chancellors confecting ways to escape the state law of commercial transactions when that law produces a result not to our tastes. Doing what seems fair is heady stuff. But the next seller may be a tremendous corporate conglomerate engaged in the cattle feeding business, and the next lender a small town Texas bank. Today’s heady draught may give the majority a euphoric feeling, but it can produce tomorrow’s hangover.
I. Rights under § 2.403
My analysis begins with an examination of the relative rights of seller and secured party under § 2.403(a).
Section 2.403 gives certain transferors power to pass greater title than they can themselves claim. Section 2.403(a) gives good faith purchasers of even fraudulent buyers-transferors greater rights than the defrauded seller can assert. This harsh rule is designed to promote the greatest range of freedom possible to commercial vendors and purchasers.
The provision anticipates a situation where (1) a cash seller has delivered goods to a buyer who has paid by a check which is subsequently dishonored, § 2.403(a)(2), (3), and where (2) the defaulting buyer transfers title to a Code-defined “good faith purchaser.” The interest of the good faith purchaser is protected pro tanto against the claims of the aggrieved seller. §§ 2.403(a); 2.403, Comment 1. The Code expressly recognizes the power of the defaulting buyer to transfer good title to such a purchaser even though the transfer is wrongful as against the seller. The buyer is granted the power to transfer good title despite the fact that under § 2.507 he lacks the right to do so.
The Code definition of “purchaser” is broad, and includes not only one taking by sale but also covers persons taking by gift or by voluntary mortgage, pledge or lien. § 1.201(32), (33). It is therefore broad enough to include an Article Nine secured party. §§ 1.201(37); 9.101, Comment; 9.102(a), (b). Thus, if C.I.T. holds a valid Article Nine security interest, it is by virtue of that status also a purchaser under § 2.403(a). See First Citizens Bank and Trust Co. v. Academic Archives, Inc., 10 N.C.App. 619, 179 S.E.2d 850 (1971); Stumbo v. Paul B. Hult Lumber Co., 251 Or. 20, 444 P.2d 564 (1968); In re Hayward Woolen Co., 3 U.C.C. Rep. 1107 (D.Mass., 1967).
While I shall discuss in detail infra, the implications of C.I.T.’s security interest under Article Nine and under other Article Two provisions, I here note that C.I.T. is the holder of a perfected Article Nine interest which extends to the goods claimed by the seller Stowers.
Attachment of an Article Nine interest takes place when (1) there is agreement that the interest attach to the collateral; (2) the secured party has given value; and (3) the debtor has rights in the collateral sufficient to permit attachment. § 9.204(a).
(1) The agreement: In 1963, Samuels initially authorized C.I.T.’s lien in its after-acquired inventory. The agreement between these parties remained in effect throughout the period of delivery of Stowers’ cattle to Samuels.
(2) Value: At the time of Stowers’ delivery, Samuels’ indebtedness to C.I.T. exceeded $1.8 million. This preexisting indebtedness to the lender constituted “value” under the Code. § 1.201(44).
(3) Rights in the collateral: Finally, upon delivery, Samuels acquired rights in the cattle sufficient to allow attachment of C.I.T.’s lien. The fact that the holder of a voluntary lien — in-
[1243]*1243APPENDIX — Continued
eluding an Article Nine interest — is a “purchaser” under the Code is of great significance to a proper understanding and resolution of this case under Article Two and Article Nine. The Code establishes that purchasers can take from a defaulting cash buyer, § 2.403(a). Lien creditors are included in the definition of purchasers, § 1.201(32), (33). A lien is an Article Nine interest, §§ 9.101, Comment; 9.102(b); 9.102, Comment. The existence of an Article Nine interest presupposes the debtor’s having rights in the collateral sufficient to permit attachment, § 9.204(a). Therefore, since a defaulting cash buyer has the power to transfer a security interest to a lien creditor, including an Article Nine secured party, the buyer’s rights in the property, however marginal, must be sufficient to allow attachment of a lien. And this is true even if, arguendo, I were to agree that the cash seller is granted reclamation rights under Article Two. See First National Bank of Elkhart Cty. v. Smoker, 11 U.C.C.Rept.Serv. 10, 19 (Ind.Ct.App., 1972); Evans Products Co. v. Jorgensen, 245 Or. 362, 421 P.2d 978 (1966).
If the Article Nine secured party acted in good faith, it is prior under § 2.403(a) to an aggrieved seller. Under the facts before us, I think that C.I.T. acted in good faith. The Code good faith provision requires “honesty in fact”, § 1.201(19), which, for Article Two purposes, is “expressly defined as . reasonable commercial standards of fair dealing.” §§ 1.201, Comment 19; 2.103(a)(2). There is no evidence that C.I.T. acted in bad faith in its dealings with Samuels, or that Stowers’ loss resulted from any breach of obligation by C.I.T. There is no claim that the 1963 security agreement was the product of bad faith. The lender’s interest had been perfected and was of record for six years when Stowers’ delivery to Samuels occurred. There is no suggestion that the $1.8 million debt owing from Samuels to C.I.T. was the result of bad faith or of a desire to defeat Stowers’ $50,000 claim. There is no claim that C.I.T. exercised or was able to exercise control over Samuels’ business operations. There is no evidence that C.I.T. authorized or ordered or suggested that Samuels dishonor Stowers’ check. There is no contention that C.I.T.’s refusal to extend credit on May 23, the date Samuels filed a voluntary petition on bankruptcy at a time when it owed C.I.T. more than $1.8 million, was violative of an obligatory future advance clause. The Code’s good faith provision requires “honesty in fact”, § 1.201(19); it hardly requires a secured party to continue financing a doomed business enterprise.
The majority deny that C.I.T. acted in good faith because, they claim, the lender had “intimate” knowledge of Samuels’ business operations. The majority’s source of information on the scope of C.I.T.’s knowledge is a little puzzling. The Referee in Bankruptcy found only that “C.I.T. knew or should have known of the manner by which the bankrupt bought livestock . . on a grade and yield basis.” In the Matter of Samuels & Co., Inc., No. BK 3-1314 (N.D. Tex., order of Jan. 19, 1972). This factual finding was affirmed by the District Court which reversed the Referee and upheld C.I.T.’s propriety over Stowers. Id., orders of Nov. 24, 1972, and Jan. 16, 1973. Neither the Referee nor the District Court found, nor have the parties alleged, that C.I.T.’s knowledge of Samuels’ business extended to knowledge of the debtor’s obligations to third party creditors.
However, even if evidence had established that C.I.T. knew of Samuels’ nonpayment and of Stowers’ claim, C.I. T.’s status as an Article Two good faith purchaser would be unaffected. Lack of knowledge of outstanding claims is necessary to the common law BFP, and is similarly expressly required in many Code BFP and priority provisions. See e. g., §§ 3.302; 6.110; 8.301, 8.302; 9.301(a)(2). But the Code’s definition of an Article Two good faith purchaser
[1244]*1244APPENDIX — Continued
does not expressly or impliedly include lack of knowledge of third-party claims as an element. The detailed definition of the Article’s counterpart of the common law BFP requires only honesty in fact, reasonable commercial behavior, fair dealing. And this describes precisely C.I.T.’s dealings with Samuels: during the period May 13-22 — the time when the bulk of Stowers’ cattle were delivered and the time of the issuance of the NSF checks — C.I.T.’s advances to Samuels totalled $1 million. The advances were curtailed on May 23 because of Samuels’ taking voluntary bankruptcy at a time when its indebtedness to C.I.T. was enormous. The decision to terminate further funding was clearly reasonable. It was also fair, and honest, and, as the majority have failed to grasp, was not the cause of Stowers’ suffering. As' I note infra in my analysis of rights under Article Nine, the sellers’ loss was avoidable through perfection of their security interests in the cattle. If they had perfected, they would not only have been prior to C.I.T. as an Article Nine lender, § 9.312, but also protected against C.I.T. as an Article Two purchaser, § 9.201. As it happens, Stowers did not perfect. I believe the sellers cannot now be permitted to force an innocent, if prosperous, secured creditor to shoulder their loss for them.
II. Rights under § 2.507
The majority opinion devotes much of its concentration and energy to an analysis of the sellers’ “reclamation right” under § 2.507 and § 2.702. Relying on an expansive reading of these Sections, the opinion concludes that a cash seller whose right to payment is frustrated through a check ultimately dishonored can “reclaim” proceeds of goods delivered to the buyer despite an interim third-party interest, and despite a yearlong delay in seeking reclamation. I am unable to accept this reading of Code policy and requirements.
Although the Code expressly grants a credit seller the right and power to reclaim goods from a breaching buyer, the right is triggered only by specific and limited circumstances; it can be asserted only if an exacting procedure is followed; and the right can never be asserted to defeat the interests of certain third parties who have dealt with the defaulting buyer. § 2.702(b), (c). There is no Code Section expressly granting a similar reclamation right to a cash seller.
The seller’s remedies upon breach are enumerated in § 2.703. These provisions do not include or suggest a right or power in a cash seller to recover goods already delivered to a breaching buyer. Nevertheless the courts have read a reclamation right into the Code. It is this judicially-confected right to reclaim goods in which the majority’s reclamation analysis is grounded. However, the majority take the reclamation right beyond anything intimated by the Code or heretofore permitted by courts recognizing a cash seller’s reclamation right.
The cash seller’s right to reclaim has been drawn from the language of § 2.507(b) and § 2.507, Comment 3. I note, first, that the remedy granted by § 2.507(b) is one of seller against buyer, see In re Helms Veneer Corp., 287 F.Supp. 840 (W.D.Va., 1968). It does not concern rights of seller against third parties. Section 2.507, Comment 3 explains that the seller’s rights under § 2.507 must “conform with the policy set forth in the bona fide purchase section of this Article,” i. e., with § 2.403. As I have noted above, under this provision the rights of an aggrieved cash seller are subordinated to those of the buyer’s good-faith purchasers, including Article Nine lenders such as C.I.T. Thus, the Code provisions supporting a cash seller’s reclamation right expressly preclude recovery by Stowers as against C.I.T. See §§ 2.507(b); 2.507, Comment 3; 2.702(b), (c). See also Stumbo v. Paul B. Hult Lumber Co., 251 Or. 20, 444 P.2d 564 (1968); In re Hayward Woolen Co., 3 U.C.C.Rep. 1107 (D.Mass., 1967); Evans
[1245]*1245APPENDIX — Continued
Products Co. v. Jorgensen, 245 Or. 362, 421 P.2d 978 (1966).
Moreover, those courts which have permitted reclamation under § 2.507 have invariably adhered to § 2.507, Comment 3’s express requirement that demand for' return be made within ten days after receipt by the buyer or else be lost. See In re Colacci’s of America, Inc., 490 F.2d 1118 (C.A.10, 1974); In re Helms Veneer Corp., supra; Stumbo v. Paul B. Hult Lumber Co., supra; In re Mort, 208 F.Supp. 309 (E.D.Pa., 1962).
In the instant case, demand was not made within ten days or ten weeks; it came a full year after delivery to Samuels. The majority excuse this gross noncompliance by finding that the sellers’ failure was the product of innocent error, and, in any event, was not required since the “purpose” of the demand rule — protection of purchasers of the delivered goods — was served through C.I. T.’s alleged intimate knowledge of Samuels’ business operations.
The Code’s ten-day provision is an absolute requirement. There is no exception in the Code Sections or Comments, express or implied, to the statutory period.' I would be hesitant to read any extension into a statute of limitations clear and unambiguous on its face, and particularly unwilling to allow an extension some 36 times greater than the statutory maximum. My reluctance is all the greater where the right at issue is not granted by the Code but is rather the product of judicial interpretation of a Comment which, whatever grant of power it may suggest, expressly limits that right to a ten-day life.
The spirit in which the rule was broken seems to me irrelevant. Even conceding that Stowers’ noncompliance occurred in absolute good faith, it was nonetheless noncompliance. Mistake of law does not constitute excuse of mistake.
C.I.T.’s apocryphal intimate knowledge of Samuels’ business operations is, I believe, also irrelevant to a determination of the validity of Stowers’ claim. The majority find the purpose of the ten-day rule to be one of notice to third parties that a claim exists. I have somewhat greater difficulty than my brothers in pinpointing the purpose of the ten-day rule. But I am convinced that the goal is not one of protection or notice to third-party purchasers, for their rights are secure under the Code as against the aggrieved seller even if demand is timely made. §§ 2.507, Comment 3; 2.702(c). The Code does not condition the purchasers’ rights on a lack of knowledge of the seller’s interest. With or without knowledge, the purchaser rests secure. I am therefore forced to conclude that the ten-day rule serves some function other than notifying third-party takers, and, consequently, that even if C.I.T. knew of Stowers’ claim, the sellers’ obligation under the ten-day rule would not have been excused. And even if knowledge by the purchaser suspended the sellers’ duty to make a timely demand, the record in this case is devoid of any hint that C.I.T. knew of Samuels’ breach and Stowers’ reclamation right.
Moreover, § 2.507 and § 2.702 speak of a right to reclaim goods. Neither provision grants a right to go after proceeds of those goods. Where a right or interest in proceeds is recognized by the Code it is recognized expressly. See e. g., § 9.306. The right granted by § 2.507 is narrowly defined. I am unwilling to imply an extension to such a short-lived and precisely drawn remedy.
Finally, even if there were a right to reclaim proceeds, even if the right had been timely exercised, and even if it could have been exercised despite the transfer of interest to C.I.T., Stowers would have taken subject to C.I. T.’s perfected Article Nine interest. See §§ 9.201, 9.301, 9.306, 9.312. See also my discussion of C.I.T.’s rights and interest under Article Nine, infra.
[1246]*1246APPENDIX — Continued
III. Rights under § 2.511
The majority opinion states that C.I. T.’s interest cannot be found superior to Stowers’ because such a finding would violate § 2.511’s prohibition on penalizing a seller for accepting as payment a check which is ultimately dishonored. I believe the majority have misconstrued the scope and significance of § 2.511.
Like § 2.507, § 2.511 concerns claims of the seller as against the buyer. See § 2.511(c), § 2.511, Comment 4. On its face it does not affect the rights of third parties taking from the defaulting buyer. Moreover, and more important, the seller is not here “penalized” for taking an N.S.F. check. Such loss as Stowers suffered is the direct result of his failure to comply with Code provisions which, once followed — and regardless of Stowers’ acceptance of Samuels’ check— would have made his interest invulnerable to claims by C.I.T. See, e. g., §§ 9.107; 9.201; 9.301; 9.312(c), (d).
IY. Rights under Article Nine
I am also unable to agree with the majority’s conclusion that, under the Code, Stowers’ interest is different from and greater than a security interest. Similarly, I disagree with the theory that by virtue of Stowers’ power under Article Two, C.I.T.’s security interest is subject to defeat since it (1) could not attach because the debtor’s rights in the collateral were too slight to permit attachment and (2) was subject to defeat even if it attached because a security interest collapses if the débtor’s right to the property is extinguished. The majority’s result is achieved only by ignoring or circumventing the plain meaning of Article Nine and Article Two.
Prior to the enactment of the Uniform Commercial Code, seller and buyer could agree that, despite buyer’s possession, title to goods sold was to remain in the seller until he was paid. Such a reservation of title under the “cash sale” doctrine would defeat not only a claim to the goods by the defaulting buyer, but also the claims of lien creditors of the buyer, for the buyer’s naked possession could give rise to no interest to which a lien could attach.
However, the U.C.C. specifically limits the seller’s ability to reserve title once he has voluntarily surrendered possession to the buyer: “Any retention or reservation by the seller of the title (property) in goods shipped or delivered to the buyer is limited in effect to a reservation of a security interest.” § 2.401(a). See also § 1.201(37). The drafters noted the theory behind this provision: “Article [Two] deals with the issues between seller and buyer in terms of step by step performance or non-performance under the contract for sale and not in terms of whether or not ‘title’ to the goods has passed.” § 2.401, Comment 1.
The majority opinion interprets § 2.401(a) as applying only to “credit” sales, and of no effect where the parties have contracted a “cash” sale. However, the Code provision speaks of “any reservation of title.” It does not on its face apply solely to credit sales. There is no authority under the Code for the majority’s restrictive interpretation. Numerous courts have, in fact, applied § 2.401 to cash sales. See e. g, Guy Martin Buick, Inc., v. Colo. Springs Nat’l Bank, 32 Colo.App. 235, 511 P.2d 912 (1973); First Nat’l Bank of Elkhart Cty. v. Smoker, 11 U.C.C.Rep. 10 (Ind.App., 1972); English v. Ralph Williams Ford, 17 Cal.App.3d 1038, 95 Cal.Rptr. 501 (1971); Evans Products v. Jorgensen, 245 Or. 362, 421 P.2d 978 (1966). I have been unable to find even one case suggesting that § 2.401 applies only to credit sales.
If the majority were correct, the Section would be merely definitional, for a credit sale is but a sales transaction in which the seller reserves a security interest. However, § 2.401 is not definitional. It is operational and concerns the effect of transfer of possession under a sales contract upon any reservation of title. Neither law nor logic leads me to believe
[1247]*1247APPENDIX — Continued
that § 2.401 is correctly interpreted to exclude cash sales.
The majority also suggest that Stowers’ interest cannot be characterized as a security interest subject to Article Nine requirements and priorities since, the majority conclude, such interests must be “consensual”. While it is true that many interests governed by Article Nine are consensual, §§ 9.102; 9.102, Comment, the Code clearly subjects Article Two security interests arising not by consent but by operation of law to Article Nine. See §§ 2.401(a); 9.113; 9.113, Comment 2. See also §§ 2.326; 9.114; 9.102, Comment 1.
Since Stowers’ interest upon delivery of the cattle to Samuels was limited to a security interest subject to Article Nine, §§ 2.401(a); 9.113, the validity of C.I.T.’s Article Nine interest becomes crucial. If C.I.T. is the holder of a perfected Article Nine interest in the collateral claimed by Stowers through its unperfected § 2.401 interest, C.I.T.’s interest will prevail over Stowers’, § 9.312(e).
The majority assert that C.I.T. cannot claim an interest in the cattle because Samuels’ interest was too slight to permit attachment. See § 9.204(a). As I noted in my discussion of rights under § 2.403, this argument ignores the significance of § 2.403(a) and § 1.201(32), (33). The Code anticipates a situation where the interest of an unpaid cash seller who has delivered goods to a breaching buyer is subordinated to the interest of “purchasers” of the buyer. Lien creditors are included in the definition of “purchasers”; in order that there be lien creditors, the buyer’s interest must be great enough to allow attachment. Therefore, however, Samuels’ interest upon delivery of the cattle is defined, and however slight or tenuous or marginal it was, it was necessarily great enough to permit attachment of a lien, including C.I.T.’s Article Nine interest.
The majority find that even if attachment occurred, C.I.T.’s interest would be defeated by Stowers’ reclamation. The theory behind this argument is that- the rights of the Article Nine secured party are at best coextensive with the rights of the debtor; if the debtor loses his rights, the security interest too is lost.
Upon nonpayment Samuels lost the right to retain or dispose of the property, but the Code recognizes that the breaching buyer had the power to encumber, despite nonpayment, so long as he retained possession. §§ 2.403(a); 1.201(32), (33). In the instant case, this power arose as a result of Stowers’ delivery, and it did not terminate while the goods remained in Samuels’ hands. The whole point of Article Nine is the continuity of perfected security interests once they have properly attached, despite subsequent loss of control or possession of the collateral by the debtor. § 9.201. Article Nine does not except an unpaid cash seller from this overall plan. In fact it specifically provides a means for him to perfect and become prior to previous perfected security interests. § 9.312(c), (d).
To hold that a reclaiming seller is given the power to sweep away a security interest which was able to attach only as a direct and Code-approved result of his voluntary act of delivery to the buyer would require ignoring the meaning and interplay of Article Two and Article Nine. Article Two recognizes the continuous vitality and priority of an Article Nine interest over the rights of an aggrieved seller. See §§ 2.403(a); 2.507, Comment 3; 2.702(c). It would be error to believe that a proper analysis of Article Nine could require the extinction of an identical Article Nine interest in the very circumstances specified by Article Two as triggering the priority of lienor over seller. See §§ 2.403(a); 2.507(b); 2.507, Comment 3; 2.702(b), (c); 9.102; 9.107(1); 9.312(c), (d).
Any seeming unfairness to Stowers resulting from the Code’s operation is illusory, for the sellers could have protected their interests, even as against C.I.T.’s prior perfected interest, if they had merely complied with the U.C.C.’s pur-
[1248]*1248APPENDIX — Continued
chase-money provisions. §§ 9.107, 9.312(c), (d). The Code favors purchase-money financing, and encourages it by granting to a seller of goods the power to defeat prior liens. The seller at most need only (1) file a financing statement and (2) notify the prior secured party of its interest before delivery of the new inventory. The procedure is not unduly complex or cumbersome. But whether cumbersome or not, a lender who chooses to ignore its provisions takes a calculated risk that a loss will result.
In the instant case Stowers did not utilize § 9.312’s purchase-money provision. The sellers never perfected. Thus, in a competition with a perfected secured party they are subordinated, and, in this case, lose the whole of their interests. See §§ 9.201, 9.301, 9.312(e).
V. Rights under the Bankruptcy Act
C.I.T.’s perfected security interest is not subject to defeat by the Trustee in Bankruptcy Mahon. If, however, C.I.T. were to have abandoned its claim against Samuels, Stowers would nonetheless have lost in a priority contest with the Trustee.
Bankruptcy Act § 70c confers the status of a hypothetical lien creditor upon the Trustee. Mahon could assert those § 70 rights against Stowers, an unperfected secured. party, and would prevail under U.C.C. § 9.301(a)(2), (c).
Bank of Marin v. England, 385 U.S. 99, 87 S.Ct. 274, 17 L.Ed.2d 197 (1966), does not strengthen Stowers’ claim. In that case the drawer of a check took bankruptcy after the check had been issued but before presentment. The drawee paid on the instrument without notice or knowledge of the bankruptcy. Such payment was in compliance with U.C.C. §§ 4.303, 4.401 and 4.402. The Supreme Court found that an application of Bankruptcy Act § 70d under these circumstances would work a hardship on the payee or drawee. Bank of Marin has been critically attacked by scholars, see e. g., 4A Collier on Bankruptcy, § 70.68 at 755 (14th Ed. 1971). In any event, the “inequity” in Bank of Marin occurred when a loss resulted from the effect of a federal statute upon good faith compliance with state statute. The federal statute’s operation and effect were wholly beyond the control of the innocent drawee. In the instant case Stowers’ loss resulted from his own failure to comply with state law which would have enabled him to perfect his purchase money security interest. The loss could have been avoided through his own efforts. This is not the kind of loss equity protects against.
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