dissenting:
I dissent. I agree that the result reached by the majority opinion is a more just result than if the district court were reversed. Nevertheless, I cannot do the required mental gymnastics to reach an affirmance.
The fork in the road comes in the analysis of the transaction. The majority determines that UCC Article 9 applies to this transaction in Kentucky and New Jersey but not in Georgia. There is a conflict of laws question here only because the court is confronted with non-uniform versions of UCC § 9-206. Both parties contend that § 9-206 controls the decision. That section under Georgia law permits appellant to win, but the section under Kentucky or New Jersey law permits appellee to win. But how can we look to § 9-206 for the answer and then disavow the conflicts rule prescribed in Article 9? The majority finds *1145that this is only a sale-leaseback in Georgia and not a secured transaction but that it is a secured transaction in Kentucky and New Jersey. I do not think this baby can be split. United Counties Trust Company, assignee of a note, security instrument, and lease, sued Ollie’s Trolley, Inc. When Ollie’s executed the sale and leaseback documents it was in contemplation of the transaction being financed by Intercontinental Leasing Corporation. Ollie’s specifically agreed to waive any defenses it had against Intercontinental if Intercontinental assigned the lease as security for a loan. Of course, as we know, this waiver is vitiated by UCC § 9-206 in Kentucky and New Jersey, but not so by the same UCC section in the Georgia Code.
Since both the majority and I conclude that Article 9 of the Uniform Commercial Code governs this transaction, I think it is necessary that we look to the UCC for the conflicts rules to guide us. Because the case was brought in Georgia we have to look to the Georgia Uniform Commercial Code as discussed by the majority, ante at 1142-1143. In analyzing this precise issue concerning the version of Article 9 in force in Georgia, the forum, at the time of this transaction, Professor Weintraub has written:
If the conflict-of-laws problem concerns an issue covered by a provision in article 9 [here, § 9-206], the conflicts provisions of 9-102 and 9-103 are applicable. This conclusion is consistent with the primary approach of the choice-of-law provisions in sections 9-102 and 9-103 — to indicate when “this Article,” meaning the forum’s version of article 9, “applies” or “governs.”
Weintraub, Choice of Law in Secured Personal Property Transactions: The Impact of Article 9 of the Uniform Commercial Code, 68 Mich.L.Rev. 683, 696 (1970). See also J. White and R. Summers, Uniform Commercial Code 778 (1972). Furthermore, in the case of Bank of Lexington v. Jack Adams Aircraft Sales, Inc., 570 F.2d 1220 (5th Cir. 1978), my brother, Judge Ingraham, concluded that the conflict of laws provisions in Article 9 should be applied when the Uniform Commercial Code governs the issue of the validity of an Article 9 assignment. 570 F.2d at 1225.
I would apply the conflicts rule of § 9-102 to the facts of this case. This is because the broad choice of laws statement in § 1-105(1) was expressly limited by subsection (2) of § 1-105 which provided that for the specific matters listed other choice of laws provisions located elsewhere in the Code would govern. One of the specific exclusions from the general conflicts rule was Article 9 secured transactions that were to be governed by the conflicts rules of § 9-102 and § 9-103.
Ga. Code Ann. § 109A-9-102 (1962) (amended 1978) provided in pertinent part:
(1) Except as otherwise provided in 109A-9-103 on multiple State transactions and in 109A-104 on excluded transactions, this Article applies so far as concerns any personal property and fixtures within the jurisdiction of this State.
(a) to any transaction (regardless of its form) which is intended to create a security interest in personal property or fixtures including goods, documents, instruments, general intangibles, chattel paper, accounts or contract rights;
The language in § 9-102(1) that Georgia’s Article 9 “applies so far as concerns any personal property and fixtures within the jurisdiction of this State,” sets forth what was been described by the commentators as a “situs” choice of laws rule. This would mean that the location of the personal property determines the choice of which state’s law will govern a secured transaction, regardless of any contacts with other jurisdictions. Although the situs choice of laws rule stated in § 9-102 was often criticized and indeed was dropped from Article 9 by the 1972 amendments to that section that Georgia adopted in 1978, commentators have indicated that if the choice of laws problem confronting a court involves an issue governed by Article 9, the situs conflict of laws provision of § 9-102 should be *1146applied. See generally Weintraub, Choice of Law in Secured Personal Property Transactions: The Impact of Article 9 of the Uniform Commercial Code, 68 Mich.L. Rev. 683 (1970); Murray, Choice of Laws in Multistate Transactions under Article 9— 1962, 1972 and A Proposal for 1982,1 Bender’s UCC Service, Chap. 5B.
The restaurant equipment which was leased by Intercontinental to Ollie’s and which was the subject of the assignment to Springfield Bank was at all times located in suburban Atlanta, Georgia. As a result, we must look to the version of § 9-102 as it was in force in Georgia at all times relevant to this transaction. Accordingly, since the situs of the equipment was Georgia, this court should apply Georgia’s version of Article 9 to this transaction.
Bound by the forum’s choice of law rules to apply the substantive law of Georgia to the issue before us, the court should look to Georgia’s version of § 9-206, Ga. Code Ann. § 109A-9-206:
(1) Subject to any statute or decision which establishes a different rule for buyers of consumer goods, an agreement by a buyer that he will not assert against an assignee any claim or defense which he may have against the seller is enforceable by an assignee who takes his assignment for value, in good faith and without notice of a claim or defense, except as to defenses of a type which may be asserted against a holder in due course of a negotiable instrument under the Article on Commercial Paper (Article 3). A buyer who as part of one transaction signs both a negotiable instrument and a security agreement makes such an agreement.
(2) When a seller retains a purchase money security interest in goods the Article on Sales (Article 2) governs the sale and any disclaimer, limitation or modification of the seller’s warranties.
Since this provision is not made applicable to lessees, Ollie’s, as lessee of the restaurant equipment, may not avail itself of the defense of the Springfield Bank’s alleged notice of the failure of consideration which Ollie’s sought to raise against the assignee, United Counties.
Under Georgia law an agreement by a lessee not to assert claims or defenses against an assignee of the lease is strictly enforceable. Dalton American Truck Stop, Inc. v. ADBE Distributing Co., Inc., 136 Ga.App. 606, 222 S.E.2d 61 (1975); Short v. General Electric Credit Corporation, 113 Ga.App. 476, 148 S.E.2d 450 (1966). Whether an assignee has notice of a lessee’s defense of failure of consideration is irrelevant under Georgia law. Therefore, Ollie’s asserted defense below would not have been sufficient under applicable Georgia law. In my view, the district court erred in granting summary judgment for Ollie’s.