Do “disclaimers” ever end up in court? They do, and maybe the most famous ruling (in part) concerning a disclaimer was ruled upon just about a month ago. See below:
… a disclaimer by one party casting responsibility on another party exonerates the other party’s lies [?] That is a fantasy world, not the real world. New York City Civil Court Judge Arthur F. Engoron
What Judge Engoron doesn’t know is that auctioneers do this routinely. Every second of every day in the United States, an auctioneer is stating something is [this] but then disclaiming that he or she just said this was [this.]
Further, and regarding Judge Engoron’s ruling, some auctioneers will say something and then note, “That’s just what the seller told us” (casting responsibility on another party) so maybe this isn’t a good idea either?
We’ve encouraged auctioneers to pay attention to “unreasonable inconsistency” here: https://mikebrandlyauctioneer.wordpress.com/2021/06/21/can-an-auctioneer-disclaim-an-express-warranty/ where we cite Law Professor Kurt M. Saunders‘ analysis.
The defendant in this notable aforementioned case said certain properties were worth a certain amount, but then disclaimed that he said that (or was responsible for saying that.) The Judge was having none of it, calling such a stance a “fantasy world.”
Can you as an auctioneer express something as true, and then say “But it might not be true?” Further, can you say “And if it’s not true, I’m not responsible?” Almost universally, this is an unreasonable inconsistency that is prohibited by state law in the U.S. (UCC § 2-316)
It’s almost a certainty that altering this state law (essentially deleting it) would constitute a manifestly unreasonable customization. Other than abiding by this law, you could possibly disclaim the entire Uniform Commercial Code? Best of luck with that plan.
Given the defendant in this case, maybe most auctioneers consider this type of disclaimer perfectly legal? That’s fine, but the Judge here — and state law — disagrees with you. You may want to develop better habits to keep out of a fantasy world.
Mike Brandly, Auctioneer, CAI, CAS, AARE has been an auctioneer and certified appraiser for over 30 years. His company’s auctions are located at Mike Brandly, Auctioneer, Brandly Real Estate & Auction, and formerly at Goodwill Columbus Car Auction. He serves as Distinguished Faculty at Hondros College, Executive Director of The Ohio Auction School, and an Instructor at the National Auction Association’s Designation Academy and Western College of Auctioneering. He has served as faculty at the Certified Auctioneers Institute held at Indiana University and is approved by The Supreme Court of Ohio for attorney education.
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