We previously wrote that auctioneers cannot disclaim express (expressed) warranties. That treatise involving the UCC § 2-316 is here: https://mikebrandlyauctioneer.wordpress.com/2021/06/21/can-an-auctioneer-disclaim-an-express-warranty/.
To deal with this reality, we are seeing some auctioneers say, “Anything we express is that which the seller has told us, and we disclaim any responsibility for anything we express …” In other words, if I say this is an “Airguide Ship Wheel Barometer” I’m not responsible if it’s not, as I’m merely passing on what my seller told me.
This strategy would suggest to me that auctioneers are assigning responsibility to their sellers for any of the auctioneer’s (seller’s) expressions, and as such, any aggrieved buyer with a claim can only pursue the seller, and not the auctioneer?
It seems this might work so long as these auctioneers deem the information received from the seller as reliable, and that this isn’t information the auctioneer told the seller to hold as true.
Otherwise, if the auctioneer is essentially telling the seller what to say, then the auctioneer could be held as the one expressing the warranty, and equally troubling would be if the auctioneer was knowingly forwarding false or misleading information.
Actually, I suspect more often than not, the auctioneer is the one expressing the warranty information to his or her seller for his or her knowledge and consent — including [the false information] that the seller actually expressed this information — to only then have the auctioneer disclaim the warranty information as if the seller was the originator.
In fact, we have already been contacted by a buyer who purchased a sizeable item at auction which is not in the condition expressed in the listing. The auctioneer is claiming the seller expressed the condition notes (which the auctioneer merely repeated,) but the seller is countering he did no such thing.
Here’s maybe a better strategy — how about any expressions regarding condition, artist, age, origin, maker, etc. be accurate, and then it matters not who expressed anything? When expressions are accurate, there’s no issue. It’s only when expressions are inaccurate that there’s potential recourse.
It almost goes without saying that auctioneers have used the “as is” and “where is” disclaimer for so many years that anything they say after that they believe is forgiven. What’s virtually every auctioneer’s response when a buyer wants a refund? Too bad, you bought it “as is.”
Yet, it matters what is said (expressed.) If you tell me this is an “Airguide Ship Wheel Barometer” then I’m buying an “Airguide Ship Wheel Barometer” and nothing else. You can disclaim it works or is suitable for my home, but you can’t disclaim what you tell me it is.
Every auction school, every state association, the National Auctioneers Association, every summit, every class, every meeting … it needs to be known that “as is” is not a license (permission) to lie including saying that you’re only repeating the lie you provided your seller.
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.
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