I’ve said it, primarily because I had heard other auctioneers say it when I attended auctions as an adolescent. For this writing, we’re talking about — for example — a pottery vase that an auctioneer thinks may be Weller, but it’s not marked and he’s not sure.
In this example, maybe the auctioneer says, “This vase looks like Weller …” or “Sure appears to be Weller …” or “Reminds me of a Weller vase …” but he doesn’t say, “This is a Weller vase” as he’s not sure he wants to bind his seller to that expressed warranty but wants the bidders to believe it’s Weller.
These other expressions we’ve noted appear to be more “opinions” put forward implying a brand, manufacturer, or other versus “expressed warranties.” Yet, bidders, buyers, and sellers can be alert to these suggestions, in that if the auctioneer knew it was a Weller vase — for example — wouldn’t he have said exactly that?
Some in the legal profession suggest implied warranties can’t (shouldn’t) be disclaimed. If I buy a vase from an auctioneer who said, “All these vases appear to be Weller …” shouldn’t this one be Weller? Or, as I’ve suggested, since the auctioneer didn’t affirm it was Weller, maybe I should have assumed it’s wasn’t? https://mikebrandlyauctioneer.wordpress.com/2021/09/20/auctioneers-and-when-the-circumstances-indicate-otherwise/.
I think auctioneers can do better. If the vase is Weller, tell me it is. If you don’t know who made it, tell me what you do know — that “it’s an 11.5″ art pottery vase,” for example, instead of hoping you can make me think it’s Weller, without committing to it being Weller. In the online world (often with no previews) this policy is nearly imperative and expected.
Auctioneers don’t need to eliminate puffing (sales talk) which we’ve written about: https://mikebrandlyauctioneer.wordpress.com/2011/11/15/puffing-versus-misrepresentation-at-auction/. Generally, when it’s clear exaggeration and the recipient knows it’s an exaggeration, that’s acceptable and somewhat expected, but auctioneers should be mindful of avoiding misleading description of fact, or false or misleading representation of fact: https://www.law.cornell.edu/uscode/text/15/1125.
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 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 Auctioneers Association’s Designation Academy and Western College of Auctioneering. He is 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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