(concurring in part and dissenting in part).
I concur in the answer to the first controlling question of law presented by the trial court on permissive appeal, but I dissent from the answer to the second question.
In its second controlling question of law, the trial court asked this Court “whether [James Wiese’s] breach of implied warranty of merchantability claim ... cannot be maintained against [Alabama Powersport Auction, LLC (‘APA’),] because [APA] was not a seller or merchant as required by Alabama’s version of the Uniform Commercial Code.” (Emphasis added.) This Court reworded that question as follows: “Whether an auctioneer selling consigned goods on behalf of a seller may be held liable under Alabama’s version of the Uniform Commercial Code as a merchant-seller for a breach of an implied warranty of merchantability.” 148 So.8d at 720 (emphasis added).
I do not believe that APA is a seller under Alabama’s version of the Uniform Commercial Code (“UCC”). A seller is defined as “a person who sells or contracts to sell goods.” § 7-2-103(l)(d), Ala.Code 1975. Black’s Law Dictionary defines “sell” as “[t]o transfer (property) by sale.” Black’s Law Dictionary 1482 (9th ed. 2009). “A ‘sale’ consists in the passing of title from the seller to the buyer for a price.... ” § 7-2-106(1), Ala.Code 1975 (emphasis added). This Court has held that a consignee does not hold title to the goods consigned to it by a consignor but that title passes from the consignor to the buyer. Bischoff v. Thomasson, 400 So.2d 359, 365 (Ala.1981).8
In this case, FF Acquisition Corp. (“FFA”) consigned its goods to APA, which served as the auctioneer. Because APA was the consignee, and because a consignee does not hold title to the goods consigned to it by the consignor, then APA could not pass title to Wiese. Because a seller has to pass title under Alabama’s version of the UCC, and because APA did not pass title to Wiese, APA cannot be considered a “seller” under Alabama’s version of the UCC and therefore cannot be liable for breach of an implied warranty of merchantability under § 7-2-314, Ala. Code 1975.
The main opinion decides the case based on the common law of agency, which, “[u]nless displaced by the particular provisions of [Alabama’s version of the UCC] ... supplements] its provisions.” § 7-1-103(b), Ala.Code 1975. However, because § 7-2-103 defines “seller” in a way that excludes APA, the common law cannot supplement § 7-2-103 in this case. Therefore, although I concur in the answer to the first controlling question of law, I dissent from the answer to the second question.
BOLIN, J., concurs.
. Although Alabama’s version of the UCC has changed since Bischoff was decided, Bis-choff ’s rule appears still to be correct in light of§ 7-2-106(1), Ala.Code 1975.