An auctioneer might express what something is, be in the business of representing such property, or suggest (imply) what something is. What are the possible outcomes of such actions? We have held you cannot disclaim your expressed warranties, and you shouldn’t disclaim your other warranties …
Indeed auctioneers can sell property “AS IS” and DISCLAIM IMPLIED WARRANTIES OF MERCHANTABILITY and FITNESS FOR A PARTICULAR PURPOSE. Yet, should we? Should we say things that aren’t true? Should we suggest things that aren’t true? Should we sell “whatever” all the time, but disclaim any expertise?
You can sell “AS IS and WHERE IS” and otherwise disclaim responsibility, but if you tell me it’s a UD-3900 station, shouldn’t it be? If I ask if that’s a “UD-3900” should you not lead me to think it is when it isn’t? If you are an authorized UD-3900 dealer, should you know more about your inventory of UD-3900 stations than I do?
Yes.
Yes, we’ve made “AS IS and WHERE IS” and “DISCLAIM IMPLIED WARRANTIES OF MERCHANTABILITY and FITNESS FOR A PARTICULAR PURPOSE” uppercase (conspicuous) to make such disclaimers enforceable, as we wrote about here: https://mikebrandlyauctioneer.wordpress.com/2021/09/13/conspicuous-auction-disclaimers/.
Of course, you aren’t going to delete your disclaimers but here’s an additional thought: You don’t need them if you don’t lie, misrepresent, or not live up to your proclaimed expertise. For the often referenced watch that is marked (but likely isn’t) “Rolex” — if you just say it’s a watch and allow for previews and inspection, you are likely fine.
Lastly, think of yourself as a bidder/buyer. What would you want if you were lied to, misled, or taken advantage of by an auctioneer? Attorney Christopher Tompkins wrote a general analysis of this subject and we’ve condensed (and tweaked) following, suggesting how it may apply at an auction:
Breach of an expressed warranty (UCC § 2-313):
There was an auction.
The auctioneer described the property or provided a depiction.
The property was not as represented.
The buyer suffered damages as a result.
The buyer provided the auctioneer notice.
Breach of an implied warranty of merchantability (UCC § 2-314):
There was an auction.
The auctioneer is a merchant with respect to this property.
The property was not merchantable.
The buyer suffered damages as a result.
The buyer provided the auctioneer notice.
Breach of the implied warranty of fitness for a particular purpose (UCC § 2-315):
There was an auction.
Prior to the auction, the auctioneer had reason to know the particular purpose for which the buyer bought the property.
The auctioneer had reason to know the buyer was relying on the auctioneer.
The buyer relied on the auctioneer.
The property was not suitable for that purpose.
The buyer suffered damages as a result.
The buyer provided the auctioneer notice.
Auctioneers certainly need sellers, but what do those sellers need? Bidders and buyers. Treating bidders and buyers fairly and reasonably (and consistently https://mikebrandlyauctioneer.wordpress.com/2022/06/24/auctions-equal-footing-binding-alike/) is in your seller’s (and your) interest.
Most busy auctioneers are exceptionally good at preparing property, marketing property, utilizing technology, and having the right staff — so all you need to do better is treat bidders like you’d like to be treated, of course assuming you would like to be treated fairly and reasonably?
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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