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In 1949, the Uniform Commercial Code was unveiled by Karl Llewellyn and his drafting-crew, which legally distinguished merchants and nonmerchants within Article 2 of the Code. However, the author suggests that a merchant muddle has arisen due to a fundamental misunderstanding of the nature and purpose of Article 2, which the author argues was never intended to codify merchant custom and trade usage. Section I of the article describes and then refutes the perception that the merchant rules codify actual business practices. It goes on to discuss some of the actual considerations that prompted the substantive content of the merchant rules. Section II explains how the merchant/nonmerchant bifurcation naturally resulted from Llewellyn’s jurisprudence. Section III explores the problem of deciding who is a merchant and why it should matter, using as an example the question of whether a farmer is a merchant under the statute of frauds. Finally, section IV discusses the legacy of Llewellyn’s Article 2 merchant theory and concludes that a thorough reevaluation of the merchant rules is now in order.


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8 Sep 2022
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