| | | 9-615(f) [Maine cite section 9-1615, subsection (6}] provides a | | special method for calculating a deficiency or surplus if (i) the | | transferee in the disposition is the secured party, a person | | related to the secured party, or a secondary obligor, and (ii) | | the amount of proceeds of the disposition is significantly below | | the range of proceeds that a complying disposition to a person | | other than the secured party, a person related to the secured | | party, or a secondary obligor would have brought. |
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| | | 11. Warranties. Subsection (d) [Maine cite subsection (4)] | | affords the transferee in a disposition under this section the | | benefit of any title, possession, quiet enjoyment, and similar | | warranties that would have accompanied the disposition by | | operation of non-Article 9 law had the disposition been conducted | | under other circumstances. For example, the Article 2 warranty | | of title would apply to a sale of goods, the analogous warranties | | of Article 2A would apply to a lease of goods, and any common-law | | warranties of title would apply to dispositions of other types of | | collateral. See, e.g., Restatement (2d), Contracts § 333 | | (warranties of assignor). |
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| | | Subsection (e) [Maine cite subsection (5)] explicitly provides | | that these warranties can be disclaimed either under other | | applicable law or by communicating a record containing an express | | disclaimer. The record need not be written, but an oral | | communication would not be sufficient. See Section 9-102 [Maine | | cite section 9-1102] (definition of "record"). Subsection (f) | | [Maine cite subsection (6)] provides a sample of wording that | | will effectively exclude the warranties in a disposition under | | this section, whether or not the exclusion would be effective | | under non-Article 9 law. |
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| | | The warranties incorporated by subsection (d) [Maine cite | | subsection (4)] are those relating to "title, possession, quiet | | enjoyment, and the like." Depending on the circumstances, a | | disposition under this section also may give rise to other | | statutory or implied warranties, e.g., warranties of quality or | | fitness for purpose. Law other than this Article determines | | whether such other warranties apply to a disposition under this | | section. Other law also determines issues relating to disclaimer | | of such warranties. For example, a foreclosure sale of a car by | | a car dealer could give rise to an implied warranty of | | merchantability (Section 2-314) unless effectively disclaimed or | | modified (Section 2-316). |
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| | | This section's approach to these warranties conflicts with the | | former Comment to Section 2-312. This Article rejects the | | baseline assumption that commercially reasonable dispositions | | under this section are out of the ordinary commercial course or |
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