Colorado Code
Part 1 - Short Title, General Construction, and Subject Matter
§ 4-2-104. Definitions: "Merchant" - "Between Merchants" - "Financing Agency"

Source: L. 65: p. 1299, § 1. C.R.S. 1963: § 155-2-104. L. 2006: (2) amended, p. 490, § 4, effective September 1.
Cross references: For the person in the position of a seller, see § 4-2-707.
Prior Uniform Statutory Provision: None. But see Sections 15(2), (5), 16(c), 45(2) and 71, Uniform Sales Act, and Sections 35 and 37, Uniform Bills of Lading Act for examples of the policy expressly provided for in this Article.
Purposes:



The special provisions as to merchants appear only in this Article and they are of three kinds. Sections 2-201(2), 2-205, 2-207 and 2-209 dealing with the statute of frauds, firm offers, confirmatory memoranda and modification rest on normal business practices which are or ought to be typical of and familiar to any person in business. For purposes of these sections almost every person in business would, therefore, be deemed to be a "merchant" under the language "who ... by his occupation holds himself out as having knowledge or skill peculiar to the practices ... involved in the transaction ..." since the practices involved in the transaction are non-specialized business practices such as answering mail. In this type of provision, banks or even universities, for example, well may be "merchants." But even these sections only apply to a merchant in his mercantile capacity; a lawyer or bank president buying fishing tackle for his own use is not a merchant.
On the other hand, in Section 2-314 on the warranty of merchantability, such warranty is implied only "if the seller is a merchant with respect to goods of that kind." Obviously this qualification restricts the implied warranty to a much smaller group than everyone who is engaged in business and requires a professional status as to particular kinds of goods. The exception in Section 2-402(2) for retention of possession by a merchant-seller falls in the same class; as does Section 2-403(2) on entrusting of possession to a merchant "who deals in goods of that kind".
A third group of sections includes 2-103(1)(b), which provides that in the case of a merchant "good faith" includes observance of reasonable commercial standards of fair dealing in the trade; 2-327(1)(c), 2-603 and 2-605, dealing with responsibilities of merchant buyers to follow seller's instructions, etc.; 2-509 on risk of loss, and 2-609 on adequate assurance of performance. This group of sections applies to persons who are merchants under either the "practices" or the "goods" aspect of the definition of merchant.
Cross References:
Point 1: See Sections 4-1-102 and 4-1-203.
Point 2: See Sections 4-2-314, 4-2-315 and 4-2-320 to 4-2-325, of this Article, and Article 9.
Definitional Cross References:
"Bank". Section 4-1-201.
"Buyer". Section 4-2-103.
"Contract for sale". Section 4-2-106.
"Document of title". Section 4-1-201.
"Draft". Section 4-3-104.
"Goods". Section 4-2-105.
"Person". Section 4-1-201.
"Purchase". Section 4-1-201.
"Seller". Section 4-2-103.

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