Pursuant to the Uniform Commercial Code (“UCC”), express and implied warranties are applicable to auction sales.  Therefore, an auction sale subject to the provisions of UCC are governed by the express and implied warranty provisions of the Uniform Commercial Code.

In Kendall v. Bausch & Lomb, Inc., 2009 U.S. Dist. LEXIS 52195, 31-32 (D.S.D. 2009), the court stated that “the warranty of merchantability generally promises that the goods will conform to the ordinary standards and are of average grade, quality, and value of like goods which are generally sold in the stream of commerce.”

While some provisions of the UCC apply to a broader group, other provisions such as the implied warranty of merchantability are limited in application to those who are merchants of a certain kind of goods, thereby restricting the implied warranty to a much smaller group.  Whether a party is a merchant  is a question of fact.  Therefore, the implied warranty of merchantability under the UCC may be applicable to auctioned goods where circumstances establish that their owner is a “merchant” within the UCC definition.