In the case known as United States v. Barnes, 222 U.S. 513 (1912) (Supreme Court of the United States) the topic of expressio unius est exclusio alterius was discussed, specifically:
The maxim expressio unius est exclusio alterius is a rule of construction, and not of substantive law, and serves only as an aid in discovering legislative intent when not otherwise manifest. United States v. Barnes, 222 U.S. 513 (1912)
The English translation of this Latin phrase is “the expression of one thing is the exclusion of the other.” For example, If I announce “No cars are to be parked on the side lot” then trucks can be parked on the side lot — that is unless otherwise manifest (obvious.)
How might this impact an auction and/or auctioneer? For opening announcements, if only part of the terms and conditions are read aloud, one could argue the other terms and conditions don’t apply since they weren’t announced.
Given this risk, it may be prudent to either announce the entire terms and conditions — or none at all. Or, possibly an announcement that the terms and conditions have been provided (manifest,) and then here are the highlights … if only certain terms or conditions are emphasized.
This same principle could apply to property descriptions — say you have a car in an upcoming auction that has an engine problem and such is disclosed on the website and other advertising, but when the car is sold, you announce, “This car is ready to go … “ and sell it. It is ready to go and/or does it have an engine problem?
Several years ago, we wrote an article related to this subject, where we suggested that being consistent and prudent has merits: https://mikebrandlyauctioneer.wordpress.com/2010/06/18/as-is-auction-with-an-especially-as-is-item/.
Finally, it’s important to talk with your attorney about your specific announcements — particularly for material assets — to ensure you are not excluding any significant information concerning any property as well as your overall auction event.
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 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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