Auction terms and conditions are important. Auction terms and conditions also have to make sense, and sometimes they don’t. For instance, this auctioneer makes no representation or warranty of any kind on lots included in the auction … and no sale shall be invalidated by inaccuracies or incorrect descriptions.
This is an example of auction terms and conditions which don’t make any sense. You see, any sale can in fact be invalided by incorrect descriptions … as anything the auctoneer expresses is an expressed warranty, for which the property must conform. Plus, he says he makes no warranties, so why the need to disclaim them?
An auctioneer says this is a “Komatsu D39EXi-24 Dozer” then it must be a Komatsu D39EXi-24 Dozer. If the sale of this property is complete, and in fact, this is not a Komatsu D39EXi-24 Dozer but rather a Komatsu D37PX-24 Dozer (an inferior dozer,) the sale can be invalidated.
Yet, the terms and conditions say such a sale can’t be invalidated. So, what’s the answer? The terms and conditions say one thing, and the facts and the law say otherwise. If you said it’s a Komatsu D39EXi-24 Dozer and I as the buyer purchased (received) a D37PX-24 Dozer, I can invalidate the sale.
In this case, the buyer didn’t buy what the auctioneer offered at the auction. The buyer can keep it, or return it for a full refund and this auctioneer’s terms and conditions are invalid — ineffective.
Or, let’s change our example here and propose the property is in fact a Komatsu D39PXi-24 Dozer (a better dozer,) instead of a Komatsu D39EXi-24 Dozer as advertised, the buyer could now keep it since the auctioneer undoubtedly claims all sales are final? Didn’t the auctioneer say that?
Let’s imagine this case where the auctioneer actually conveyed a better property (D39PXi-24) than advertised (D39EXi-24.) His terms say all sales are final, and can’t be invalidated by inaccuracies or incorrect descriptions. Yet, the auctioneer wants to unilaterally rescind this deal from which the buyer benefited.
… so let me understand — if the purchase is worse, the auctioneer says the buyer is stuck, but if the purchase is better, the auctioneer can unwind it? That’s the utter hypocrisy of this common practice and it’s untenable.
Auctioneers are acting for their sellers as agents. Auctioneers are held to a higher standard as fiduciaries and should know what they’re putting up for auction or at very least not misrepresent it. As such, we suspect generally a buyer wins this argument either way — returning if it’s inferior, or keeping it if it’s better — especially with this auctioneer’s expressed policy.
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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