An auctioneer offers to refund your money … if you can prove he intentionally misrepresented the property you bought. Interestingly, how could anyone prove he intentionally misrepresented anything? Couldn’t he just reply he unintentionally misrepresented it?
So as I read the terms, there would be no refund if he accidentally (unintentionally) misrepresented the property. This seems eerily similar to auctioneers disclaiming expressions by saying that they are only passing on what their seller said.
However, does a buyer need to prove intent? A buyer does not. Whatever is expressed is a warranty, and as such cannot be disclaimed — intentional or unintentional. Incidentally, this same auctioneer says he’s not responsible for any expressions or implications.
By the way, just claiming the seller said “whatever” and the auctioneer is merely repeating “whatever” doesn’t relieve the auctioneer from liability: https://mikebrandlyauctioneer.wordpress.com/2021/07/05/can-auctioneers-disclaim-what-they-tell-you-their-sellers-said/.
Maybe this auctioneer is counting on uninformed buyers who look at these terms and see fairly typical (unenforceable) disclaimers, but a possible refund if the misrepresentation was intentional. Could buyers think that’s fair if he only unintentionally misrepresented? Any informed buyer would know otherwise.
Interestingly, I’ve repeatedly seen the same words in the same order with the same punctuation on many different auction websites. Here are our treatises on expressed and implied warranties:
Further, on disclaiming implied warranties, it seems clear buyer inspection opportunities are required to disclaim any implications (merchantability or fitness) https://mikebrandlyauctioneer.wordpress.com/2022/12/28/buyer-inspection-ucc-2-316/.
Many auctioneers are creatures of habit and are using the same terms and conditions other auctioneers used years ago, despite these material disclaimers being unenforceable and/or necessarily coupled with inspection opportunities.
Others appear to be willfully ignoring readily available information on applicable laws and rules, hoping buyers aren’t paying attention. When auctioneers complain that buyers don’t “read anything” maybe they actually prefer it that way?
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 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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