Early in my career, I worked for Jack B. Smith, Auctioneer in Columbus, Ohio. Jack held mostly on-site auctions around central-Ohio and would routinely put up signs noting “Watch your step” and “We’re not responsible for accidents” and the like.
There’s a subtle but important difference between — for example — these two statements. “Watch your step” suggested Jack wasn’t watching your step and you do — an assignment of liability. “We’re not responsible for accidents” was more a disclaimer without assignment — in that Jack wasn’t responsible, so someone else must be.
I had attended auctions as a kid for as long as I remember, and attended auction school in Missouri right after college. But it wasn’t until I arrived back in the big city where I noted these additional types of disclaimers were routine.
Today, some auctioneers memorialize all these disclaimers (and assignments) in a document that bidders sign prior to securing a bid card — they are part of the ever-expanding one-sided, all-about-us terms and conditions.
Interesting to me that Jack’s signs alerted bidders to be careful, while today that 68-page 2-sided, 6-pt type document does little to caution bidders … and that’s obviously not the purpose. Instead this document is designed to discourage lawsuits or help in a lawsuit.
Or, that’s what you’re being told. You see, a sign on the wall saying “Watch your step” is far different from line 2,261 on page 58 in 6-pt type saying “And further, you as the bidder are exclusively responsible for watching your step …” because the latter indicates you couldn’t care less if they really do.
Line 2,261 only cares that the bidder’s personal injury attorney sees it and says, “Well, you did agree to watch your own step …” so I’m not sure we have a case here. In other words, are you as an auctioneer interested in people being careful and/or just protecting your legal liability?
I was sitting with three attorneys I work with and asked them — as a group — could I disclaim (or assign) everything? Their responses were fairly consistent — essentially they said, “You can disclaim or assign anything until you can’t.” I asked rhetorically, ” … and when does one find that out?”
Different age of disclaimers 05/07/20
Next time you’re adding another 1,000 lines to your terms and conditions, ask yourself if that verbiage is intended to actually protect your seller, bidders/buyers, the public, and/or just yourself?
The better job we as auctioneers do showing we care about people other than ourselves, the more they might think we actually do, and ironically the less we’ll need those 68 pages.
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, an Instructor at the National Auctioneers Association’s Designation Academy and America’s Auction Academy. He is faculty at the Certified Auctioneers Institute held at Indiana University and is approved by the The Supreme Court of Ohio for attorney education.
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