Many auctioneers attempt to disclaim anything they say and imply, and we’ve noted that auctioneers cannot successfully disclaim expressions, and disclaiming implied warranties must provide for a reasonable opportunity to inspect prior.
Essentially, [most] auctioneers say that what they say and imply is “worthless information.” In a current legal case of some fame, the defendant is claiming his statements regarding value (and otherwise) were “worthless.” The court is countering this claim, however:
Thus, the ‘worthless clause’ does not say what defendants say it says, does not rise to the level of an enforceable disclaimer, and cannot be used to insulate fraud as to facts peculiarly within defendants’ knowledge, even vis-à-vis sophisticated recipients. New York City Civil Court Judge Arthur F. Engoron
Of course, this is the same case where this same Judge noted that lying and then casting responsibility on someone else for your lies is a “fantasy world.” https://mikebrandlyauctioneer.wordpress.com/2023/11/01/a-disclaimer-ruling-in-court/. This would appear to be the case regardless of the disclaimer used.
It would seem that disclaiming all responsibility for what you say or imply would be ill-advised given a court could certainly rule that you can’t do either. You could say that your statements and implications were worthless, but would that be enough to insulate you?
The other thing to be attentive to is, that this “worthless clause” seems to be a recent legal notion (pronouncement) not well-founded in the law. The defendant said, “Many lawyers have come to me and said, ‘You have the greatest worthless clause I’ve ever seen,'” but the Judge said the defendants’ reliance on these ‘worthless’ disclaimers was [literally] worthless.
Quite frankly, I question if many lawyers have expressed similar sentiments. Furthermore, I have obvious reservations about the efficacy of such a disclaimer in offering any protection, and I highly doubt that your attorney would endorse this notion. While it is possible that employing such a disclaimer could lead bidders/buyers and sellers to perceive that you are indemnified, it is also conceivable that this may not be the case.
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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