Vanderbilt Law Review

First Page



The Uniform Commercial Code' represents an attempt to codify,to clarify and to improve the substantive law of commercial transactions. Even a summary examination of the Code impresses one with the magnitude of this ambitious undertaking to reform so huge a body of substantive law. Inevitably, such a project must shade over into areas of adjective law and problems of proof. Whether through inadvertence or failure of the draftsmen to solicit the aid of persons whose expertise is outside the substantive law of commercial transactions, it is precisely at the points where substantive and procedural law meet in the Uniform Commercial Code that the most infelicitous results may very well have occurred. The confluence of substantive law and procedural law is most turbulent in the area of presumptions and burden of proof. It is almost axiomatic that the burden of proof problem represents a "lamentable ambiguity of phrase and confusion of terminology; furthermore, it has been said of both presumption and burden of proof that "presumption is the slipperiest of the family of legal terms, except its first cousin, 'burden of proof'." It is the thesis of this paper that in the area of commercial law the draftsmen of the Uniform Commercial Code have not only done very little to alleviate the ambiguous and slippery nature of the burden of proof and presumption problems; but, unhappily, new ambiguities and uncertainties have been injected as a result of a lack of proper attention to these procedural spectres which haunt the law.