DECISION ON MOTIONS FOR ADMINISTRATIVE CLAIMS

ROBERT E. GRANT, Chief Judge.

The debtor in this chapter 11 case operates a dairy farm in northwest Ohio. As part of that operation, it entered into agreements with five brothers — Louis, Dennis, Roger, John and Matt Niese — for silage. The first of these was a silage agreement by which one or more of the Niese brothers would grow a specified number of acres of corn silage for the debtor, and the debtor was to pay the agreed upon price (which was determined by a formula) in fourteen equal monthly installments; it also granted the producer a license to store the silage on the debtor's property. The second agreement was derived from the first; in particular from the license to store the silage on the debtor's property. This was a title retention agreement. It acknowledged that title to the silage remained with the producer and gave the debtor the first right to purchase it, from time to time, but only for consumption by its dairy herd. Until it did so, title remained with the Nieses. In the meantime, the debtor was responsible for the care and protection of the silage, bore the risk of any loss, and was to insure it.

The Nieses have filed motions for administrative expenses on account of the silage the debtor used during the twenty days prior to the petition. The motions are based upon 11 U.S.C. § 503(b)(9) and have drawn objections from a creditor of the debtor: Bank of America. The matter is before the court following trial of the issues raised by the motions and the bank's objections to them.1

Section 503(b)(9) of the Bankruptcy Code gives an administrative expense to a pre-petition creditor for "the value of any goods received by the debtor within 20 days before" the commencement of the case, which were "sold to the debtor in the ordinary course of [the] debtor's business." 11 U.S.C. § 503(b)(9). The parties do not dispute that the silage movants provided is a good, that it was sold to the debtor in the ordinary course of its business, or the value of the silage the debtor used during the twenty days prior the petition. Their dispute turns upon the question of when that silage was "received." The Nieses argue the debtor received it when it was removed from the bunkers and fed to debtor's livestock. The bank argues the silage was received when it was placed in the bunkers on the debtor's property, following harvest, in the late summer and fall of 2011, months before the case began.

The term "received" is not defined in the Bankruptcy Code. Other courts interpreting § 503(b)(9) have examined its history and its relationship to § 546(c), which governs reclamation. Having done so, they conclude that the terms used in § 503(b)(9) — including "received" — should be given the same meaning they have in § 546(c), and, since § 546(c) is derived from the reclamation provisions of the Uniform Commercial Code, the court may look to the UCC for guidance. See e.g., In re Momenta, Inc., 455 B.R. 353, 357-59 (Bankr.D.N.H.2011), aff'd Ningbo Chenglu Paper Products Mfg. Co., Ltd. v. Momenta, Inc., 2012 WL 3765171 (D.N.H.2012); In re Circuit City Stores, Inc., 432 B.R. 225, 229 (Bankr.E.D.Va.2010). Cf., In re Goody's Family Clothing Inc., 401 B.R. 131 (Bankr.D.Del.2009) (looking to the UCC to define the term "goods"). See also, 4-503 Collier on Bankruptcy ¶ 503.16.

Although "receive" is not defined by the UCC, the term "receipt" is, and it has been used in interpreting "received" in § 546(c) and § 503(b)(9). Both the UCC and Ohio's version of it define "receipt" as "taking physical possession" of the goods. U.C.C. § 2-103(1)(c); O.R.C. § 1302.01(A)(3).2 This possession may be actual or constructive, In re Western Iowa Limestone, Inc., 538 F.3d 858, 864 (8th Cir.2008); In re Momenta, Inc., 455 B.R. 353, 359 (Bankr.D.N.H.2011); In re Mayer Pollock Steel Corp., 157 B.R. 952, 960 (Bankr.E.D.Pa.1993), and occurs when the seller "can no longer stop delivery and is left only with the remedy of reclamation."3 In re Bill's Dollar Stores, Inc., 164 B.R. 471, 475 (Bankr.D.Del.1994). Thus, the key to determining when goods are received is possession — whether actual or constructive4 — not title.

"A person who knowingly has direct physical control over a thing, at a given time, is ... in actual possession of it." Black's Law Dictionary 1163 (6th ed. 1990). From the time the silage was delivered to and placed in the bunkers on its property the debtor had control over it. The silage was located on the debtor's property; the debtor was responsible for its care and protection; the debtor bore the risk of any loss; and the debtor determined when and how much silage would be removed from the bunkers to feed its dairy herd. It is extremely difficult to see how all of this does not constitute actual physical possession, notwithstanding the locus of title. This reality is not changed by the license debtor granted the movants or attempts to characterize the arrangement as a bailment, with debtor acting as a bailee.5 The court concludes that the debtor received the silage when it was delivered to and placed in the bunkers on its property and not when it was removed and fed to the debtor's livestock. Accord, In re Circuit City Stores, Inc., 432 B.R. 225 (Bankr. E.D.Va.2010); In re Pridgen, 2008 WL 1836950 (Bankr.E.D.N.C.2008).

The debtor received the silage more than twenty days prior to the commencement of the case. The motions for allowance of administrative expense claims filed by Louis Niese; John and Matt Niese; and Dennis and Roger Niese should be DENIED and an order doing so will be entered.