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be no breach of the warranty of title on account of the encumbrance. [2 Hawkland UCC Series § 2-312:2, Westlaw (database updated June 2021).]
c. Excluding or Modifying the Warranty of Title The parties may exclude or modify the warranty of title, but only via (1) specific language or (2) the right circumstances. The language or circumstances, in turn, must afford the buyer reason to know either (1) that the seller does not claim to have title herself or (2) that the seller purports to sell only whatever right or title she or a third party has, if any. [U.C.C. § 2-312(2) (1951); 2 Hawkland UCC Series § 2-312:4, Westlaw (database updated June 2021).] Language Excluding or Modifying the Warranty of Title Merely selling the goods “as is” is not sufficient to disclaim the warranty of title. Rather, the seller should employ specific language bringing home to the buyer that the buyer, not the seller, has the risk of title. There is no express statutory requirement that the language be conspicuous ( e.g. , in bold font or all capital letters). [2 Hawkland UCC Series § 2-312:4, Westlaw (database updated June 2021).] Circumstances Excluding or Modifying the Warranty of Title Examples of circumstances that might exclude or modify the warranty of title include when the buyer purchases the goods at an executor’s sale, a sheriff’s sale, or a foreclosure sale by a judicial lienholder (but not one by an Article 9 secured creditor). In these circumstances, it is generally understood that the seller is purporting to sell only such right or title to the goods as she has, if any. [ See U.C.C. § 2-312, cmt. 5 (1951); 2 Hawkland UCC Series § 2-312:4, Westlaw (database updated June 2021).] 3. Warranties against Infringement Article 2 contemplates two distinct warranties against infringement: one applies against certain sellers, and the other applies to certain buyers. [U.C.C. § 2-312(3) (1951); 2 Hawkland UCC Series § 2-312:3, Westlaw (database updated June 2021).] a. Seller’s Warranty against Infringement The seller’s warranty against infringement applies (1) unless otherwise agreed and (2) only against a merchant regularly dealing in goods of the kind. This warranty is that the goods will be delivered free of any third party’s rightful claim of infringement of intellectual- property rights or anything similar ( e.g. , patent or trademark infringement). The seller’s warranty against infringement protects the buyer, even if the buyer has just as much reason to know of any infringement as the seller does ( e.g. , even if the buyer also deals in
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