Auctioneers have been proclaiming this since the “beginning of time.” The buyer has an issue with a purchase, and the auctioneer says, “Sorry … you bought it ‘as is’.” Let’s explore possibly the five most pronounced faults in this claim:
Selling “as is” is inoperative unless you are selling “AS IS” where the subject term here is conspicuous. (1)
Whatever the auctioneer expresses is a warranty. For example, if the auctioneer says a lot is a “14K Yellow Gold Ring” it then must be. (2)
Whatever the auctioneer implies is a warranty lacking the reasonable opportunity to preview. So, if the buyer can’t reasonably preview, buyers can hold auctioneers to any implications. (3)
You have to provide rightful clear title to the buyer. The ring has to be free of undisclosed secured interests and has to be a rightful transfer from the seller to the buyer. (2)
This ring can’t have an undisclosed latent defect that the auctioneer has actual knowledge concerning (or should have known about.) (4)
So, the buyer didn’t see “as is” as conspicuously displayed, the ring didn’t match the description, the buyer couldn’t preview and it was implied it could be worn as a ring and couldn’t, the ring has an undisclosed lien, or the ring has a small undisclosed latent crack in the band … the buyer could (unilaterally) return the item for a refund.
As a result, it’s not “Sorry … you bought it ‘as is'” and rather, “Sorry, but I’m returning this for a refund.” I know this is surprising to most auctioneers, and it would have been surprising to me early in my career, but these are the facts as we see them.
Admittedly, many buyers sense that buying at auction is risky, and whatever they buy is without any warranty. Yet, it’s actually less risky than most believe — yet when confronted by an auctioneer proclaiming “as is” is always a legal defense, it can be a bit intimidating to believe otherwise.
References:
(1) https://mikebrandlyauctioneer.wordpress.com/auction-treatise/%c2%a7-2-316-exclusion-or-modification-of-warranties/ (2) https://mikebrandlyauctioneer.wordpress.com/2021/07/08/the-three-big-auction-warranties/ (3) https://mikebrandlyauctioneer.wordpress.com/2022/12/28/buyer-inspection-ucc-2-316/ (4) https://mikebrandlyauctioneer.wordpress.com/2020/10/26/possible-liability-for-nondisclosure/
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 formerly at 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 Auction 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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