Slavery, Self-help, and Secured Transactions

Section 9-609 of the Uniform Commercial Code, which has been enacted in every U.S. state, authorizes a secured lender to seize the property of a debtor in default without judicial process. The only limit to this power is that the lender cannot "breach the peace" in the process of repossession. This expansive right of self-help has spawned a $1.7 billion "asset recovery" industry in the United States that undertakes hundreds of thousands of repossessions every year. Many of these repossessions lead to violence. Lawyers, judges, and scholars justify the powerful right of self-help by pointing to its roots in the ancient common law right of recaption. The early cases they rely on, however, share little in common with the modern world of self-help repossession. This analysis also leaves out a more relevant history the history of American slavery. This Article uncovers the role that slavery played in outlining the boundaries of lawful recaption and defining breach of peace. In cases involving enslaved people held as property, American courts accepted a level of violence in repossessions that the common law would not have allowed. In so doing, judges not only expanded the boundaries of self-help but also provided critical legal support for the holding in Prigg v. Pennsylvania, one of the US. Supreme Court's most notorious fugitive slave cases. Understanding the influence of slavery on the doctrine of self-help repossession uncovers a forgotten moment in the development of commercial law and challenges traditional justifications for this unusual and powerful legal right.