Washington Law Review


Defining “Breach of The Peace” in Self-Help Repossessions

June 01, 2012 | 87 Wash. L. Rev. 569

Abstract:  Since Roman times, creditors have invoked the limited extrajudicial remedy of
self-help repossession. Pre-colonial English laws also allowed for a limited repossession
remedy outside of the courts, provided the creditor accomplished the repossession without a
“breach of the peace.” The Uniform Commercial Code (UCC) has allowed for the self-help
remedy since the 1950s, making it available for any secured party in the event of contractual
default so long as there was no breach of the peace. The drafters of the UCC, however, failed
to define what constituted a “breach of the peace,” choosing to allow the courts to flesh out
the definition in a fact specific, ex post fashion. This has resulted in a lack of clarity and
consistency across jurisdictions as each court attempts to craft a breach of the peace
requirement without guidance from the UCC. This Comment argues that courts across the
country should adopt a two-part test for determining whether a breach of the peace occurred
during self-help repossession. The two-part test involves three per se rules of exclusion
followed by consideration of two factors to reach a final decision.

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