Could an auctioneer say that except for what he expresses (at a certain time) buyers cannot rely on anything else he expresses (at other times?) We would suggest not.
For example, an auctioneer says that “Except for any expressions announced at the time of sale” there are no other warranties or guarantees of any kind, expressed or implied … it’s an interesting argument for sure. What I say (express) at the time of sale is a warranty, but anything else I say (express) isn’t? What are these other potential expressions?
It would seem there could be digital advertising, print advertising, catalogs, and signage at a minimum. So whatever signs say doesn’t count? Whatever the catalog says doesn’t count? Whatever other advertising doesn’t count?
Any of this other content would almost assuredly be considered expressed, and auctioneers cannot disclaim anything they express, no matter the media. https://mikebrandlyauctioneer.wordpress.com/2021/06/21/can-an-auctioneer-disclaim-an-express-warranty/.
Selectively warranting what we say (express) at the “time of sale” but disclaiming anything else said (expressed) prior, during, or after the time of sale is not reasonable.
Let’s say the auction advertising (and catalogs, signs) notes Lot #31 is a Rebuilt Mercedes M129 2.5L Motor. The auctioneer says Lot #31 is a Rebuilt Mercedes M127 2.2L Motor. The buyer confirms his purchase is an M129 and therefore presumably has recourse.
However, what if auction advertising (and catalogs, signs) notes Lot #31 is a Rebuilt Mercedes M129 2.5L Motor and the auctioneer says Lot #31 is a Rebuilt Mercedes M127 2.2L Motor and the buyer confirms his purchase is an M127? Does the buyer now have no recourse?
The essence of why auctioneers cannot disclaim expressed warranties is a lack of consistency. Certainly, Lot #31 here cannot be both an M129 2.5L Motor and an M127 2.2L Motor. All expressions should be congruous.
More concerning would be an advertisement of an M129 2.5L Motor coupled with no “time of sale” announcements. The buyer buys the motor and it’s an M127 … and there’s no recourse because the auctioneer didn’t express the model at the time of sale?
Actually, the auctioneer did express the model in the advertising. The buyer did not get what was warranted and would have recourse — namely a refund of his purchase price. This issue is even more important now, with so much property being sold online(-only) where personal inspection is often waived and/or impractical. Bidders are rightly increasingly relying on written (expressed) details.
Indeed auctioneers need to sometimes correct advertising with the time of sale announcements, as we noted in one of our prior analyses: https://mikebrandlyauctioneer.wordpress.com/2023/02/13/as-is-and-what-it-is-maybe-is-or-isnt/. Any of these such expressions should clearly note a revision.
We also note that this above disclaimer attempts to waive responsibility for any implied warranties. We have held outside of clear sales talk, auctioneers should not be implying anything they aren’t willing to stand behind: https://mikebrandlyauctioneer.wordpress.com/2022/11/21/can-an-auctioneer-disclaim-an-implied-warranty/.
Nonetheless, it appears unreasonable to say that some expressions are warranties, while other expressions are not warranties — because anything expressed is a warranty. Lastly, consistency with expressions/warranties is vital.
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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