(dissenting).
I dissent from the majority’s holding that Michelin does not have an independent cause of action against First National Bank of Boston (FNB). The pertinent portion of the Uniform Commercial Code as enacted in Massachusetts reads as follows:
Defenses Against Assignee; Modification of Contract After Notification of Assignment; Term Prohibiting Assignment Ineffective; Identification and Proof of Assignment. (1) Unless an account debtor has made an enforceable agreement not to assert defenses or claims arising out of a sale as provided in section 9 — 206 the rights of an assignee are subject to
(a) all the terms of the contract between the account debtor and assignor and any defense or claim arising therefrom[.]
Mass.Gen.Laws Ann. ch. 106, § 9-318(l)(a).
Although the words “subject to” suggest that the limitations that follow are merely restrictions on the assignee’s affirmative rights and are not affirmative rights themselves, the word “claim” suggests that the account debtor may assert affirmative rights of action against the assignee.
No Massachusetts court has ruled directly on this question. In Fall River Trust Co. v. B. G. Browdy, Inc., 346 Mass. 614, 195 N.E.2d 63, 2 U.C.C.Rep.Serv. 1 (1964), however, the Massachusetts Supreme Judicial Court indicated that an account debtor could assert as a setoff the type of claim Michelin is seeking to assert affirmatively here. That case involved an attempt by the account debtor of a bankrupt business, in an action by the bankrupt’s creditor and assignee of accounts against the account debtor for amounts due, to set off the amount of value of the account debtor’s goods that the bankrupt had lost. The bankrupt was engaged in the finishing and dyeing business, and the account debtor had earlier delivered certain goods to him to be finished and dyed. Because of ambiguities in the record, the court remanded the case for further fact finding. The court said, however, that if the goods lost had been delivered pursuant to the accounts that the assignee was now suing on, the account debtor could, under section 9-318(l)(a), set off the value of the goods lost. The question in this case, then, is whether an account debtor’s claims against the assignee for payments mistakenly made due to fraud are restricted to situations where they may be asserted in setoff or whether they may be asserted originally.
I believe that the sounder view is that an account debtor may sue the assignee directly under section 9-318(l)(a) for payments received under the assigned contract. This section provides that an assignee’s rights are subject to claims and defenses that the account debtor had against the assignor. The Uniform Commercial Code, as enacted in Massachusetts does not define “claim,” *684but the word “claim” is commonly understood to include original cause action. For example, when “claim” is used in the Massachusetts Rules of Civil Procedure (admittedly the rules quoted were effective only as of 1974), it includes original claims. See Mass.R.Civ.P. 8(a) (“[a] pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim shall contain ... a short and plain statement of the claim showing that the pleader is entitled to relief[.]”); Mass.R. Civ.P. 18(a) (“[a] party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third party claim, may join, either as independent or as alternate claims, as many claims, legal or equitable, or both, as he has against an opposing party.”)
It is, in my opinion, incorrect to conclude that the words of limitation, “subject to,” foreclose original claims. A party’s rights can be subject to whatever affirmative claims or defenses another party might assert. Under section 9-318(l)(a), an assignee’s rights to retain payments made to it under an assignment are subject to, or are exposed to, affirmative actions brought by the account debtor to recover payments mistakenly made. The definition of “subject to” taken by the court from Englestein v. Mintz, 345 Ill. 48, 61, 177 N.E. 746, 752 (1931), and Anderson v. Southwest Savings & Loan Association, 117 Ariz. 246, 248, 571 P.2d 1042, 1044 (1977), is too broad. The “affirmative rights” denied to the plaintiffs in those cases were open-ended rights, that is, the plaintiffs were seeking amounts in excess of and unrelated to amounts provided for under the original contracts. In Englestein, plaintiff asserted that because his partnership agreement with defendant to purchase part of a parcel of real estate was “subject to” the terms of an earlier contract defendant had with the vendor of the real estate, he was entitled to share as a partner in other purchase transactions defendant had with respect to the parcel. The court rejected the claim, in part on the basis of its definition of “subject to.” In Anderson, plaintiff sued for breach of implied warranties in the sale of a mobile home, naming as defendants the vendor, the manufacturer, and the vendor’s secured creditor. The Arizona court affirmed dismissal of the suit against the secured creditor, reasoning that “subject to” in section 9-318(l)(a) did not expose a secured creditor to such claims against the creditor’s assignor. These cases do not reject the result I support, that payments received by an assignee of accounts (FNB) are subject to a claim by an account debtor (Michelin) that payments were mistakenly made because of fraud by the assignor (JCC).
This interpretation of section 9-318(l)(a), that the account debtor has rights of action against the assignee, is the fairest way to reconcile the rights of account debtors and secured creditors, particularly where, as here, credit is advanced through a line of credit. This case boils down to the question of whether the secured creditor or the account debtor should bear the cost of not finding out that JCC falsely claimed that it had paid its subcontractors. The secured creditor is in a better position than the account debtor to determine whether the assignor/borrower is complying with the terms of the contract in which the creditor has an interest. The reason is that the secured creditor can employ an effective sanction without having to initiate litigation and without risking any loss itself to ensure compliance; it can threaten to cut off credit unless it is satisfied with the borrower’s performance. The other party, the account debtor, has no similar sanction. If he is not satisfied, he must litigate and bear the expense of litigation and the sure delay in completion of the contract. The creditor/assignee is not deterred from enforcing compliance by such costs. Obviously, either the secured creditor or the account debtor can make inquiries regarding compliance with the contract, but at some point both will have to rely on the representations of others, which creates opportunities for fraud, as occurred here. The secured creditor is accustomed to looking over the borrower’s shoulder on an ongoing basis and can check compliance. By virtue of his control over credit, the creditor can ensure compliance with the contract. *685The account debtor can only investigate and if it holds up payments, it puts the contract in jeopardy.
The majority contends that holding for appellants will disrupt the free flow of credit because creditors will have additional duties. This argument goes too far because it counsels against any imposition on creditors. Besides, whatever increased credit costs arise will fall on the class truly at fault in these cases — the borrower/assignors.
The majority also stresses the concern that actions under section 9-318(l)(a) will make creditors fully liable for the contracts of their borrowers, which would contravene section 9-317.1 This case does not present this problem, and this result need not occur. I do not argue that the creditor should be the surety for the assignor. The creditor should be exposed only to the extent that he benefits from the assigned contract rights. Tracking the language of section 9-318(l)(a), whatever rights of payment a secured creditor has are subject to the terms of the contract between the account debtor and the borrower/assignor. The account debtor cannot go beyond the benefits the creditor/assignee obtains under the assignment in an action against the creditor. Whether the account debtor asserts the claim as a counterclaim or as an original claim should be irrelevant.
In reaching a contrary conclusion, the court has relied on the Official Comment to section 9-318 to clarify the supposed conflict between “claim” and “subject to.” This reliance is misplaced because the Comment is at least as ambiguous as the language of section 9-318(l)(a) itself.2 The relevant portion of the Comment reads, “[sjubsection (1) makes no substantial change in prior law.” The argument that the provision for an original right of action in section 9-318(l)(a) would not change pri- or law substantially is at least as plausible as the majority’s argument that it would make a substantial change.
The prior law in Massachusetts was that an account debtor could assert “all defences and rights of counter-claim, recoupment or set-off” against the creditor/assignee when the creditor/assignee sued him on the account. Mass.Gen.Laws Ann. ch. 231, § 5 (repealed 1975). This statute had primarily a procedural purpose: an assignee was enabled for the first time to sue in his own name rather than in the assignor’s, and, accordingly, an account debtor was permitted to assert defensive rights directly against the assignee when he sued. Quality Finance Co. v. Hurley, 337 Mass. 150, 155, 148 N.E.2d 385, 389 (1958). It seems reasonable to suppose that the question of affirmative rights for account debtors was simply not contemplated.3 Section 9— 318(l)(a) now speaks more broadly than did ch. 231, § 5: the account debtor’s rights against the assignee are not restricted explicitly to defensive claims. Thus, the Massachusetts legislature quite conceivably could have decided to give account debtors an affirmative right, and this would not have represented a substantial change in *686the law. Putting the point more strongly, given the plainly broader language of section 9-318(l)(a), it seems curious to turn to what is effectively the legislative history of the section in order to give it the same apparent meaning as the old statute.
I agree with the majority that the decisions from other jurisdictions are not illuminating. I cannot agree, however, with its suggestion that the decisions allowing the account debtor to sue originally are founded on an exception to section 9-318(l)(a) that is based on the common law of restitution. These decisions mark a hazy line if one is seeking to identify an exception to the rule that original rights of action by account debtors are not allowed. The element these cases do share is emphasis on some degree of participation by the assignee in the contract between the assignor and the account debtor. See Benton State Bank v. Warren, 263 Ark. 1, 562 S.W.2d 74 (1978); Farmers Acceptance Corp. v. DeLozier, 178 Colo. 291, 496 P.2d 1016 (1972); Massey-Ferguson Credit Corp. v. Brown, 173 Mont. 253, 567 P.2d 440 (1977). The function of the “participation” requirement is unclear. In Benton State Bank, the participation seems most clearly to mean that the assignee had notice of the terms of the contract between the assignor and the account debtor and so received payments subject to any actions for breach of contract.4 The court in Benton State Bank also balanced the negligence of both the account debtor and the assignee in not enforcing compliance with the contract to determine whether the assignee should be held liable. The Massey-Ferguson court emphasized participation by the assignee much more strongly, apparently on the unarticulated theory that the assignee could be sued as a sort of cocontractor or surety. The critical point for the court was that the assignee had orally affirmed the assignor’s promises. DeLozier falls somewhere in the middle: the assignee’s participation was greater than the assignee’s in Benton State Bank and less than the assignee’s in Massey-Ferguson. The DeLozier court seemed to follow the Benton State Bank notice theory.
As to contrary cases, Minnesota has held that an account debtor does not have a right of action under section 9-318(l)(a) a decision with which, of course, I do not agree. Meyers v. Postal Finance Co., 287 N.W.2d 614 (Minn.1979). A lower New York court has also appeared to hold similarly, James Talcott, Inc. v. Brewster Sales Corp., 16 U.C.C.Rep.Serv. 1165 (N.Y.Sup.Ct.1975), but in that case the court emphasized that the assignor was still solvent and could be sued and that because the account debt- or’s guarantor had paid an earlier judgment to the assignee in an action arising out of the same accounts, the account debtor was trying to get a refund of money it had not paid.
When these cases are applied to the instant case, FNB seems to be exposed to liability as an assignee with notice. The notice required in Benton State Bank and DeLozier is only notice of the terms of the contract, not notice of the breach. As in Benton State Bank, FNB was in a better position to detect or prevent breaches than Michelin. I do not rest my dissent, however, on an assignee-with-notice rule. An account debtor should be able to sue without proving notice; it is only realistic to assume that a creditor taking a security interest in accounts will acquaint himself with their terms.
For the foregoing reasons, I would hold that Michelin has a direct cause of action against FNB for the monies it received from Michelin under its assignment from JCC.
. Mass.Gen.Laws Ann. ch. 106, § 9-317 provides as follows:
Secured Party Not Obligated on Contract of Debtor. The mere existence of a security interest or authority given to the debtor to dispose of or use collateral does not impose contract or tort liability upon the secured party for the debtor’s acts or omissions.
. I would also point out that the Official Comments have not been enacted as part of the UCC in Massachusetts. Furthermore, in some states the comments were not placed before the legislatures when they considered the UCC, and the comments occasionally expand on or retract from enacted sections of the Code. J. White & R. Summers, Handbook of the Law Under the Uniform Commercial Code § 4, at 12-13 (1972).
. Wright v. Graustein, 248 Mass. 205, 142 N.E. 797 (1924) is not to the contrary. The “sole question” at issue in that case was whether the account debtor could set off damages for breach of contract caused by plaintiff not only against the claim that plaintiff had against him directly but also against claims against the account debtor that had been assigned to the plaintiff and that were sued on in the same action. The Supreme Judicial Court held that he could not. 142 N.E. at 799. The question here of the effect of the assignor’s delinquencies on the relative rights of the account debtor and assignee was not addressed.
. This characterization of Benton State Bank is different than the majority’s in that I do not believe that the fact that the bank passed along the assignor’s assertions of compliance to the *■ account debtor is particularly significant. The crucial aspect of Benton State Bank was the existence of “solid reasons” for doubting that the assignor was fulfilling its contractual obligations. Thus Benton State Bank is not so much different than this case, where FNB also had solid reasons for doubting JCC’s performance.