Tuesday, December 22, 2009

No Recovery, Massive Or Otherwise

The New York Appellate Division for the First Judicial Department affirmed the dismissal of claimed causes of action against an auction house with respect to the sale of particular items:

This action arises out of an auction of memorabilia from the Star Trek television series and motion pictures. Contrary to plaintiff's contention that defendant Christie's had represented the Commander Data uniform to be one of a kind, no such representation was ever made in the auction catalogue. Significantly, the Conditions of Sale, which plaintiff accepted in order to be allowed to participate in the bidding process, expressly declared that "all property is sold as is' without any representation or warranty of any kind by Christie's or the seller." UCC 2-316(3)(a) recognizes that "unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like as is' . . . which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty."

Even assuming there was a breach of contract or warranty as to the other two items purchased by plaintiff at the auction, he was, under the Conditions of Sale, contractually precluded from pursuing the massive recovery he now demands. The only remedy available to him thereunder would be a refund of the sale price(s) upon return of the item(s), a limitation generally permissible in contracts for the sale of goods (see UCC 2-719[1][a]).

(Mike Frisch)


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