Is there such a thing as “auctioneer immunity?” I can’t find a reference to any federal or state law, but maybe I missed it? In other words, auctioneers can do anything, put in an abundance of waivers, disclaimers, and assignments and never get sued? I can’t find that federal or state law either.
There is “absolute immunity” for the President and like government officials. There is “qualified immunity” for police officers … which is a law that obviously needs serious attention … and rewriting. Otherwise, of course, you can get sued.
Sometimes those disclaimers, waivers, and assignments will help, and sometimes they will hurt. Courts look for a reasonable balance of risks and responsibilities; courts also look dimly at adhesionary and unconscionable take-it-or-leave-it agreements.
Is your seller/auctioneer contract take-it-or-leave-it? Maybe not. Are your bidder terms and conditions take-it-or-leave-it? Very likely. Such positions you half-way towards a less than favorable court evaluation.
Unconscionability comes in two varieties: “procedural unconscionability” and “substantive unconscionability.” Procedural is more how the contract is presented (time to read it, for example) and substantive is more what the contract contains.
How do I know all this? I often find myself sitting on one side or the other in that courtroom where the subject is an auction and I see and hear judges and attorneys discuss this type of thing all the time.
As well, I’ve testified in such cases dozens of times, with a fairly good read of when my view is upheld and when it’s not. What’s my track record? It appears to me to be favorable to anyone else’s …
The expert witness work for me isn’t always to win the case — as one might think. I sometimes accept assignments where my job is to minimize losses, more so than win.
I know it’s tempting to load up your contract and terms/conditions with page after page of waivers, disclaimers, and assignments. Unfortunately, it’s only after you’re in court when you find out if you’ve gone too far, and it’s too late to make any changes.
If it’s the last thing I ever write, I’ll probably still feel I need to suggest to auctioneers that you need sellers, but you also need buyers. No sellers — no auctions. No buyers — unhappy sellers.
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, RES Auction Services and Goodwill Columbus Car Auction. He serves as Distinguished Faculty at Hondros College, Executive Director of The Ohio Auction School, an Instructor at the National Auctioneers Association’s Designation Academy and America’s Auction Academy. He is faculty at the Certified Auctioneers Institute held at Indiana University and is approved by the The Supreme Court of Ohio for attorney education.
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