Abstract

Excerpted From: Justin Simard, Slavery, Self-help, and Secured Transactions, 113 California Law Review 219 (February, 2025) (313 Footnotes) (Full Document).

On the morning of February 7, 2003, Maria Chapa loaded her new Ford Expedition with her six- and ten-year-old sons for a trip to school. Because her mother-in-law's car was parked behind hers on the driveway, she had to move it before she could pull her own vehicle out. As she was returning her mother-in-law's keys inside the house, a tow truck driver who had been hiding around the corner drove up and, without ever leaving his truck's cab, hooked Maria's vehicle to his truck. Within thirty seconds he drove away. Eventually the tow truck driver noticed that the vehicle he was towing was running. When he stopped driving to investigate he heard “a sound” from the Expedition, leading him to discover the two children in the back seat. He “persuaded one of the boys to unlock the vehicle” and then drove them back to their distraught mother. He was gone before the police or the boys' father arrived.

The tow truck driver had been conducting a routine repossession, authorized by § 9-609 of the Uniform Commercial Code (“U.C.C.”). That provision, which has been enacted in every state, allows lenders to seize debtors' property--usually cars--after default when that property serves as collateral to guarantee a loan. Creating a security agreement that authorizes self-help repossession is a simple process: the lender must only get a signed agreement from the debtor naming the collateral. After default, there is no requirement for judicial process, and in most states the lender need not even provide notice to the debtor before it repossesses the collateral.

The powerful right of repossession under the U.C.C. is unique. U.S. law generally requires those with property claims to turn to the law, rather than authorizing self-help. Banks cannot surreptitiously seize houses or forcibly remove borrowers after default; they must instead go through a foreclosure process, and in many states they cannot take possession of a house without giving the homeowner time after foreclosure to repay the amount they owe. Even tenants have more protection than borrowers who sign security agreements. State law gives renters at least a few days after notice of nonpayment of rent to move out, and if they refuse, landlords must undertake a judicial process and rely on law enforcement to evict them. Lenders who have not established a security interest in collateral must also rely on judicial process to recover money from debtors. If the lenders prevail in court, they cannot seize the property themselves; instead, they must obtain a writ authorizing a sheriff to seize the property on their behalf. American law generally provides process, even when that protection hinders the property rights of lenders and lessors.

In the secured transactions context, however, self-help repossessions like the one Maria Chapa experienced are pervasive. They fuel a $1.7 billion industry of repo specialists in the United States. Hundreds of thousands of debtors, their families, and communities experience repossessions every year. Such repossessions are especially common for vulnerable borrowers. So-called “buy here, pay here” dealers of used cars, for example, rely on their ability to reclaim collateral to provide loans to people with poor credit. For these car dealers, collection is a central part of business. And in that business, violent confrontations commonly occur. Debtors and repo agents threaten, shoot, and sometimes kill each other or harm innocent bystanders. Repo agents have towed vehicles with debtors locked inside, forced cars off highways, run over debtors, and engaged in lengthy high-speed car chases. They also repossess a lot of cars with children in them. Although courts have not always found this violence permissible, it is a natural consequence of a system that delegates property seizures to private actors with little judicial oversight.

The only check that U.S. commercial law provides on self-help is the requirement that neither a creditor nor its agent “breach the peace” during repossession. The U.C.C. does not define breach of the peace, intentionally leaving it “for continuing development by the courts.” What counts as breaching the peace varies from state to state. American courts have found that repossessors breached the peace when they broke into a borrower's property, used physical intimidation, misrepresented their legal standing, or continued repossession attempts after strong verbal or physical contestation by borrowers. On the other hand, courts have found no breach of the peace when creditors ignored less vigorous protests from debtors, seized property from a borrower's carport or driveway in the middle of the night, or merely created a “chaotic scene.” Some decisions are difficult to understand. Repossessions involving car chases, violent threats, and breaking into debtors' buildings have all been deemed permissible by courts. In Maria Chapa's case, a Texas appellate court held that the tow truck driver had not breached the peace because there had been no objection to the repossession. According to the court's logic, “[b]y removing an apparently unoccupied vehicle from a public street when the driver was not present, [the repo agent] reduced the likelihood of violence or other public disturbance.” The court therefore accepted the driver's assumption that the vehicle was unoccupied. The breach of the peace never happened, the court seemed to say, because the driver assumed it would not. In reaching this conclusion, the court ignored the kidnapping of Chapa's children and the distress and significant risk of confrontation that their seizure created. It also disregarded the easily preventable nature of the tow truck driver's mistake: he could have avoided the entire ordeal by checking Chapa's vehicle for children. Despite its questionable logic, several courts across the United States have approvingly cited Chapa. These and other cases highlight the weak check that breach of the peace exerts on the powerful right of self-help repossession.

To justify the exceptional powers that self-help grants secured lenders, American lawyers have pointed to its roots in the common law. Highlighting self-help's origins in the ancient right of recaption allows lawyers to naturalize the right and to justify its continued place in American jurisprudence even though it appears out of step with the substantive and procedural protections law usually provides today. The early cases and treatises on which these justifications rely, however, describe a narrow right, confined strictly by strong breach of peace standards. This right of recaption has little in common with the frequent seizures of personal property undertaken by modern lenders, nor with the permissive approach applied by courts in repossession cases. The traditional doctrinal history of self-help repossession therefore neither adequately explains the pervasiveness of modern self-help repossession nor accounts for the violence it creates.

This Article argues that cases involving the repossession of enslaved people better explain the law's development and account for the violence it creates. Repossessions of enslaved people, who before abolition often served as collateral, resemble modern repossessions more closely than earlier recaption cases. The inherent violence of repossessions of people in a slave society also sheds light on the permissive stance of modern courts to breaches of the peace. Disputes over property rights in enslaved people forced courts to decide whether they would apply common law doctrine to arm's-length transactions involving human beings. American courts recognized some of the risks to the peace that repossession of people created, and some hesitated to extend it. Eventually, however, they accepted the risk of violence that repossession created in this context, using it to define the extensive rights possessed by enslavers. This expansion supported slavery by justifying the seizure of alleged fugitives from slavery. It also naturalized the violence of repossessions of people by classifying their repossession as an uncontroversial extension of ancient commercial and property rights.

The application of repossession to enslaved people helped redefine the common law right of recaption. Courts allowing seizures of enslaved people, even in contentious fugitive slave cases, helped pave the way for the modern law of self-help repossession that is more attentive to the perspectives of property owners than it is to the public peace. The history of the repossession of enslaved people therefore provides essential context for the United States' uniquely powerful right of self-repossession. Although it may be possible to justify the prevalence and violence of contemporary self-help repossession, lawyers cannot do so without grappling with its violent past.

The Article begins in Part I by explaining the stories lawyers tell to justify the right of self-help. These stories both (1) fail to acknowledge the limited role that recaption played in the law before the nineteenth century and (2) obscure the part slavery played in the development of secured transactions. In Part II, the Article examines the extension of the right of recaption to enslaved people. Placing the development of the American doctrine of self-help in the context of slavery challenges the traditional story of the development of self-help. Doing so also illustrates the way that slavery influenced the development of law. Slavery both increased the salience of secured transactions in personal property and led courts to establish expansive breach of peace standards. In Part III, the Article turns to Justice Story's opinion in Prigg v. Pennsylvania (1842), the first recaption case in the U.S. Supreme Court. It shows that Story's opinion manipulated the doctrine of self-help to support the constitutional rights of slaveholders to seize alleged fugitive slaves. In Part IV, this Article examines how authors of the U.C.C. failed to engage with self-help repossession's application in slavery. By focusing on the ancient history of recaption--and ignoring the powerful destabilizing potential of self-help illustrated by its application to enslaved people--they codified a more violent version of self-help than the one on which they depended for justification. The Article concludes by explaining how dramatic growth in consumer borrowing has increased the importance of the right of self-help, exposing millions of people to the violence that Story and others ratified in the law of slavery.

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The U.C.C.'s authorization of self-help repossession gives a unique and powerful right to creditors. Legal writers have generally situated this right within the long history of common law recaption. That history, however, shares little in common with the modern rule of self-help applied primarily to seize cars of consumers who miss payments. Nor does this history explain the permissive repossession standards found in American law. Studying nineteenth-century history helps illuminate these paradoxes. In cases involving disputes over enslaved people, American judges expanded the boundaries of self-help, raising the level of violence courts would accept in recaption. This acceptance of violence extended to seizures of alleged fugitive slaves, even when these seizures conflicted with state law. Slavery's connection to the development of self-help possession laws need not foreclose the continued use of self-help repossession, but it should challenge the profession's reliance on a different, less-related common law past to justify the unique power of modern self-help repossession under the U.C.C.

The law of self-help repossession is not the only area in which further attention to nineteenth-century history can be illuminating. Many other legal stories explain a legal principle's ancient, common-law past before skipping to its contemporary manifestations. Others engage with nineteenth-century law but not with the context within which that law was made. Learning about slavery's relationship to private law will tell us more about our legal past and slavery's persistent legal legacy.

Associate Professor of Law, Michigan State University College of Law.