The UCC § 2-316 is often cited in regard that auctioneers can disclaim an express warranty. For instance, I can say I’m selling an Airguide Ship Wheel Barometer and I’m selling it “as is.” If you purchase this item, and it’s not an Airguide Ship Wheel Barometer, you’re out of luck.
I would hold you (the buyer of the non-Airguide Ship Wheel Barometer) is not out of luck. Rather, I would suggest that the UCC § 2-316 actually says:
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; https://mikebrandlyauctioneer.wordpress.com/auction-treatise/%c2%a7-2-316-exclusion-or-modification-of-warranties/
It would seem to me as well as Law Professor Kurt M. Saunders (Department Chair and Professor of Business Law at California State University, Northridge) that if I say this is an Airguide Ship Wheel Barometer and it’s not, that both statuses (it is and it is not) are not consistent with each other and therefore not reasonable. I’ve attached Prof. Saunders’ complete 13-page analysis here:
I suppose if an auctioneer wasn’t sure this was an Airguide Ship Wheel Barometer, then he could say it was a “Weather Instrument” and that would be true, even if not Airguide nor a Ship Wheel nor a Barometer. But if the expression is an “Airguide Ship Wheel Barometer,” then it better be one.
I bring this issue up because we receive calls almost every week where a buyer has purchased an item (live or online) and what they got isn’t what was described. Typically, the auctioneer’s response is “Sorry, you bought it as is.”
For less valuable property we usually recommend the buyer take this as a “learning experience.” However, when the value of the subject property is significant, competent legal counsel is typically recommended. It’s really a shame auctioneers and/or sellers don’t just refund the buyer when the item has been expressly misrepresented.
Finally, it’s not difficult at all to find an auction where the terms say, “Everything sold “as is, where is,” no warranties, expressed or implied.” Actually, auctioneers can disclaim implied warranties, but cannot — per the UCC § 2-316 (state law) — disclaim expressed warranties.
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, 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.
Comments