TITLE 5
Businesses and Professions

CHAPTER 5-62
Works of Art – Artists' Rights

SECTION 5-62-9


§ 5-62-9 Express warranties.

Notwithstanding any provision of any other law to the contrary:

(1) Whenever an art merchant, in selling or exchanging a work of fine art, furnishes a certificate of authenticity or any similar written instrument to a buyer of the work who is not an art merchant, it:

(i) Shall be presumed to be part of the basis of the bargain; and

(ii) Creates an express warranty for the material facts stated as of the date of the sale or exchange.

(2) Except as provided in subdivision (4) of this section, the warranty shall not be negated or limited provided that in construing the degree of warranty, due regard shall be given to the terminology used and the meaning accorded to the terminology by the customs and usage of the trade at the time and in the locality where the sale or exchange took place.

(3) Language used in a certificate of authenticity or similar written instrument, stating that:

(i) The work is by a named author or has a named authorship, without any limiting words, means unequivocally, that the work is by the named author or has the named authorship;

(ii) The work is "attributed to a named author" means a work of the period of the author, attributed to him or her, but not with certainty by him or her; or

(iii) The work is of the "school of a named author" means a work of the period of the author, by a pupil or close follower of the author, but not by the author.

(4)(i) An express warranty and disclaimers intended to negate or limit a warranty shall be construed, wherever reasonable, as consistent with each other, but subject to the provisions of the Uniform Commercial Code, § 6A-2-202, on parole or extrinsic evidence, negation or limitation is inoperative to the extent that the construction is unreasonable.

(ii) A negation or limitation is deemed unreasonable if:

(A) The disclaimer is not conspicuous, written and apart from the warranty, in words, which clearly and specifically apprise the buyer that the seller assumes no risk, liability or responsibility for the material facts stated concerning the work of fine art. Words of general disclaimer are not sufficient to negate or limit an express warranty; or

(B) The work of fine art is proved to be a counterfeit and this was not clearly indicated in the description of the work; or

(C) The information provided is proved to be, as of the date of sale or exchange, false, mistaken or erroneous.

History of Section.
(P.L. 2000, ch. 429, § 2.)