It could be jewelry, coins, statuary, firearms, pottery, or any number of things. For example, if it’s an 1895-CC Morgan Silver Dollar, I want to make sure it’s genuine and this auctioneer has guaranteed that.
This auctioneer actually guarantees all coins in this auction event to be genuine … or has this auctioneer guaranteed that? Further in the terms is this all too familiar disclaimer:
All coins are sold “AS IS and WHERE IS” with all faults. There are no expressed or implied warranties of any kind and auctioneer doesn’t guarantee any expressions as to quality, quantity, fitness, condition, usability, merchantability, salability, weight, age, year, measurement, value, color, origin or composition of coins.
If this coin is genuine (not a fake) isn’t the auctioneer guaranteeing at minimum the “age,” “year,” “quantity” and “composition?” So, I can and can’t count on the auctioneer’s description of age, year, quantity, and/or composition. Which is it?
This is complete nonsense, and as well as an “irreconcilable conflict” — the coin can’t be a genuine 1895-CC and not at the same time. So, if it’s not a genuine 1895-CC then the auctioneer will refund my money, but will likely not refund my money?
We note this in state law where UCC § 2-316 says that:
Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but subject to the provisions of this Article on parol or extrinsic evidence (Section 2-202) negation or limitation is inoperative to the extent that such construction is unreasonable. https://mikebrandlyauctioneer.wordpress.com/auction-treatise/%c2%a7-2-316-exclusion-or-modification-of-warranties/
This truly makes me wonder if auctioneers read their own terms and conditions. If you’re in the auction business, don’t you know you can’t guarantee something is genuine and not guarantee it’s genuine in the same document? Clearly, some auctioneers don’t know this.
Buyers and sellers at auction need to be careful who they engage with as their auctioneer. Auctioneers with irreconcilable conflicts in their terms and conditions are eventually going to find disgruntled buyers, negatively affecting the seller’s position.
Auctioneers can and should do better. It’s clear continuing education should be required for every auctioneer to remain in business:
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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