We’ve noted that auctioneers cannot disclaim expressed warranties, and shouldn’t disclaim implied warranties, but many mistakenly continue to do both. The other day we ran across an interesting phrasing noting the auction company is not responsible for anything it “may attempt to describe.”
If I’m an auctioneer and describing what is selling, I’m held to that description. So am I equally held if I’m merely attempting to describe? The word “attempt” suggests making an effort to do something. Wouldn’t an effort be equally required to simply describe something?
We think so, and we don’t think attempting to describe is any different than describing. Therefore, we would hold auctioneers can’t disclaim their efforts to describe either. Maybe it’s this simple? If you say something is X (actually or attempt to) then it has to be X or the buyer has recourse. And saying it’s all selling “AS IS” with no recourse is contrary to that.
Maybe by suggesting we’re just “trying to be correct” rather than expressly suggesting “we are correct” this auctioneer is hoping to avoid some liability? We think it’s a meaningless difference, in that you are using words to describe property either way. A better strategy would be to say nothing to avoid a binding warranty.
Those outside the auction business likely wonder why auctioneers just can’t tell the truth, be honest, describe what is selling accurately, and be good agents of their sellers? It’s as if bad behavior (lying, omitting, misrepresenting) is preferred and it becomes fashionable to [attempt to] disclaim everything.
Further, it’s okay to say “I don’t know” if you don’t know something — that is unless you should know. It’s been proven that bidders bid more with increased disclosure, so endeavoring to know and providing accurate information benefits the seller. https://mikebrandlyauctioneer.wordpress.com/2020/10/16/providing-as-much-information-as-possible/.
We wonder if a seller would even deserve his or her property to be accurately described, rather than merely “attempted to be described?” Maybe a better choice would be an auctioneer who knows more about this type of property and will endeavor to describe it appropriately?
If you prefer legal analysis, here is my article regarding Law Professor Kurt M. Saunder’s (Department Chair and Professor of Business Law at California State University, Northridge) treatise on this subject: https://mikebrandlyauctioneer.wordpress.com/2021/06/21/can-an-auctioneer-disclaim-an-express-warranty/.
This is the second such article (of three) in which auctioneers are using completely unenforceable terms and conditions. Here’s the first such article we published on July 12, 2022: https://mikebrandlyauctioneer.wordpress.com/2022/07/12/no-liability-for-accuracy-errors-or-omissions/.
We say again: Those outside the auction business likely wonder why auctioneers just can’t tell the truth, be honest, describe what is selling accurately, and be good agents of their sellers? It’s as if bad behavior (lying, omitting, misrepresenting) is preferred and it becomes fashionable to [attempt to] disclaim everything.
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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