Electricity! Good? No Good?

When I first started teaching Sales, I used the Whaley/McJohn casebook, and I loved it.  It has fun problems, and there are clear answers.  Is electricity a good? You might ask.  Whaley/McJohn has an answer:  the vast majority of courts have determined that electricity is moveable (“and how!”).  Works for me.  My current casebook is wise to the complexities of the world and refuses to take a position on whether electricity is a good.  What would Ben say?

In the most recent case on the subject, PacifiCorp v. N.Pac. Canners & Packers, Inc.,  the Federal District Court for the District of Oregon answers the question decisively in the negative.  The District Court was reviewing a decision of the bankruptcy court.  The issue was whether electricity was a good for the purposes of Bankruptcy Code, 11 U.S.C. § 503(b)(9).  The priority of PacifiCorp’s claim turned on the answer.  The Bankruptcy Code does not define “goods,” and so the court turned to the UCC definition of a good: “all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale” U.C.C. § 2-105(1).

The Bankruptcy Court reasoned as follows:

Electricity moves through the wire at near the speed of light and so by the time it is recorded by the meter, the electricity has already been consumed by the end user. As a result,  the electricity “is not movable at the time of identification because it has already been used.” 

Huh?

The District Court adds very little to this logic in upholding the decision:

Electricity is not “identified” until it has been recorded by the meter and, because of the speed that electricity moves through the wire and the comparative slowness of the meter, the electricity has been consumed by the time that identification occurs. The electricity is not, therefore, movable at the time of identification.

It’s fast, so it doesn’t move.  Got it.

I read this with no small amount of perplexity.  I shared my frustration with a colleague, who does criminal law.  She had strong views that electricity was not a good.  “Is wind a good?  It moves.”  I am stumped.  The CISG does the sensible thing and simply handles the matter with a definition: Electricity?  Not a good, or at least not covered by the CISG (Art. 2(f)).  

Works for me.  Hey UCC revisers!  A little help here?