Many say when it comes to contracting (contracts, terms, and conditions, and the like) that sellers and bidders have a “duty to read” the documents, despite the circumstances and not doing so.
Others say that when there is a clear attempt to conceal material information in a contract, which highly favors the drafter, that such a contact might deserve to be considered unconscionable.
If you can (and you should) make time, here’s Law Professor Charles L. Knapp’s analysis regarding “Duty to Read” and related contract matters; we happen to agree that a “duty to read” is not really in practice a duty at all — and in fact you probably won’t read it anyway.
Yet, do auctioneers really want sellers and bidders to read their contract, terms, conditions, disclaimers, waivers …? It seems many would rather you didn’t read any of it, but then have that same text ready for possible litigation. I freely admit I’ve been privy to this strategy.
Relatedly, I note on social media every single day auctioneers telling me that bidders (and even sellers) don’t read anything — so all these 100’s of pages in 1-pt type aren’t being read, nor expected to be read, and preferred not to be read? It appears so.
Most notably, we’ve held that any disclaimers including “AS IS” and “WHERE-IS” should be conspicuous, yet some say it’s not necessary nor advisable: https://mikebrandlyauctioneer.wordpress.com/2021/09/06/are-you-selling-as-is-or-as-is/.
We’ve also held small print generally is not advisable and a clear example of bad faith, but some say it’s legally binding and so it’s fine: https://mikebrandlyauctioneer.wordpress.com/2021/11/11/auction-disclosures-in-1-pt-type/.
It’s also prudent to stay out of court, rather than lose or win in court. As such, any advice about staying out of court should be held close, while advice on how to win in court should be carefully considered given the time and expense: https://mikebrandlyauctioneer.wordpress.com/2018/07/26/auctioneers-you-want-win-in-court-or-stay-out-of-court/.
We continue to think the two most important concepts auctioneers should remember are: 1. Just because you can doesn’t mean you should. 2. Just because you don’t have to doesn’t mean you shouldn’t. https://mikebrandlyauctioneer.wordpress.com/2021/05/05/should-auctioneers-be-ethical/.
Here’s our recommendation: Next time you print out your terms and conditions, property information package, contracts, disclaimers, and the like, endeavor to make all the content readable and understandable. If you disagree, it’s obvious you see merit in all this being not readable nor understandable, suggesting you’re hiding something, possibly until later?
Lastly, two Nobel Prize winners [Paul Milgrom and Robert Wilson] found that with increased disclosure, property sells for more: https://mikebrandlyauctioneer.wordpress.com/2020/10/16/providing-as-much-information-as-possible/. Given this is true, wouldn’t unreadable and not understandable information depress prices and violate your agency duties?
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, and an Instructor at the National Auctioneers Association’s Designation Academy and Western College of Auctioneering. He is 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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