Through the Eyes of the Debtor: Mississippi Reexamines the Breach of the Peace Exception to Uniform Commercial Code Section 9-503 - Ivy v. General Motors Acceptance Corp.
![handle is hein.journals/miscollr15 and id is 151 raw text is: THROUGH THE EYES OF THE DEBTOR: Mississippi REEXAMINES
THE BREACH OF THE PEACE EXCEPTION TO UNIFORM COMMERCIAL
CODE SECTION 9-503
Ivy v. General Motors Acceptance Corp.
612 So. 2d 1108 (Miss. 1992)
Stephen M. Cozart
I. INTRODUCTION
Self-help repossession is the keystone on which our consumer economy rests.
By allowing an inexpensive' method of recovering a security interest, this ancient
right makes credit purchases possible while protecting both the creditor and the
debtor.2 Section 9-5031 of the Uniform Commercial Code [hereinafter U.C.C.]
dictates that the only restriction on the right of self-help repossession is that it must
be effected without breach of the peace.4 The authors of the U. C. C. did not rede-
finebreach of the peace, but rather used this time-honored term in order to facili-
tate the continuation of principles that have governed self-help repossessions since
the middle ages.'
In Ivy v. General Motors Acceptance Corp. 6the Mississippi Supreme Court fur-
ther defined the boundaries of the breach of the peace exception, but this newest
development has not served to clarify the law; it has served to confuse the law.
Mississippi's pre-Ivy jurisprudence in the area of breach of the peace, while lim-
ited, did present a balanced and well-reasoned definition of breach of the peace. In
Ivy, however, the court failed to address the issues of when breach of the peace is
related to the repossession and the creditor's reasonable notice of protest. By ne-
glecting to address these key issues in the breach of the peace equation, the court
1. Inexpensive, of course, is a relative term. In this context, it means that self-help repossession does not
entail the hidden costs of an action for replevin. See infra notes 183-86 and accompanying text. See generally
James J. White, The Abolition of Self-Help Repossession: The Poor Pay More, 1973 Wis. L. REv. 503.
2. Eugene Mikolajczyk, Breach of Peace and Section 9-503 of the Uniform Commercial Code-A Modem
Definition for an Ancient Restriction, 82 DICK. L. REv. 351, 352 (1978).
3. Codified at Miss. CODE ANN. § 75-9-503 (1981). This section provides that [u]nless otherwise agreed a
secured party has on default the right to take possession of the collateral. In taking possession a secured party may
proceed without judicial process if this can be done without breach of the peace or may proceed by action. Id.
4. Mikolajczyk, supra note 2, at 352.
5. Mikolajczyk, supra note 2, at 354-55. Self-help repossessions were originally tolerated by a justice sys-
tem that was too weak and ineffectual to control the human impulse of resorting to self-help measures. By 1066,
however, with the growth and development of an effective judiciary, self-help had been completely outlawed.
Interest was not rekindled in self-help until the feudal system provided a need for the lord of the estate to protect
his property. The remedy was not absolute, even for the lord, because the courts realized that the protection of
the public peace was also an important concern. Mikolajczyk, supra note 2, at 352-53. This realization led to the
breach of the peace exception which still serves this same purpose today.
For a complete historical review of the right to self-help repossession, see Mikolajczyk, supra note 2, at 352-
53.
6. 612 So. 2d 1108 (Miss. 1992).](ViewImageLocal?handle=hein.journals/miscollr15&div=10&collection=&method=preview&ext=.png&size=3)
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