Auctioneers use this phrase “as-is, where-is” to denote, generally, two conditions of the sale:
- As-is: The buyers are accepting the property in its present condition, inclusive of all faults and all benefits.
- Where-is: The buyers are accepting the property at its present place on earth, as affixed (or not) to the earth or other attachment.
In other words, for a gold-colored statuary sold at auction, “as-is, where-is,” this means:
The buyer will be in contract, regardless if the gold is gold paint, or 18K gold, and be responsible for moving the statuary from its present location to his own property — even if it’s attached to the ground and weights 1,000 pounds, or is sitting on a table and weights only 7 ounces.
However, the “as-is, where-is” clause only applies to the extent that the auctioneer has not otherwise guaranteed or implied the property is … something.
For instance, an auctioneer says:
- “Folks, you’re buying all these cars “as-is, where-is” today. Our first lot is this 1965 Chevrolet Impala.”
After some spirited bidding, the auctioneer says, “Sold!” for $15,800. The buyer and seller are in contract … so long as this is indeed a 1965 Chevrolet Impala. If it’s a 1964, or a 1966, or actually a Chevrolet Belair, and not an Impala, there is no contract because there must be a “meeting of the minds” for a contract to exist.
If the seller is saying he is selling a 1965 Cheverolet Impala, but the buyer receives a 1966 Chevrolet Belair, there is no contract, and therefore no sale.
Which brings me to these statements I found in an auctioneer’s terms and conditions:
- These items are selling as is where is and no refunds or returns are allowed.
- The auctioneer, in a catalog, brochure, advertisement, or oral statement, uses his best effort to describe an item and any quantities of that item contained in a particular bid lot. Such description is made only to assist in the orderly conduct of the auction process and does not create any warranty that the item is as described or that a particular lot contains the number of items stated.
I should say that these general conditions are found in thousands of auctioneers terms and conditions; that all is selling “as-is, where-is” and no description or quality expressed creates a warranty or guarantee.
Similar to those signs on the back of gravel trucks noting they are not responsible for broken windshields — when they are actually responsible, auctioneers say that their descriptions and quantity expressions do not create a warranty or guarantee — when they actually do.
The hope of an auctioneer saying “we don’t guarantee our descriptions” even though they describe items, is that the buyer is not astute enough to argue the lack of contract and take the item even though they didn’t get what they were told they were getting.
Nevertheless, what was even more interesting was these particular terms and conditions attempted to explain the need for descriptions and quality expressions beyond bidders reliance (or lack thereof,) noting that they were necessary for the “orderly conduct of the auction process.”
What exactly does the “orderly conduct of the auction process” mean? And, why would that be the reason that inaccurate descriptions and quantities would be enforceable?
Contract law in the United States is very uniform. When a seller says he’s selling a “whatever,” the buyer of that “whatever” is only in contract with the seller if the “whatever” is indeed as described by the seller.
No condition of sale, such as “Well, I know I misrepresented that item, but I had to represent it that way to make the sale of these items today ‘orderly.'”
Well, no more than that gravel truck operator can say he’s not responsible for broken windshields because, “To have my trucks operate in a “orderly” fashion, I didn’t go to the expense of securing that load, so the items flying off my truck aren’t my problem.”
Mike Brandly, Auctioneer, CAI, AARE has been an auctioneer and certified appraiser for over 30 years. His company’s auctions are located at: Mike Brandly, Auctioneer, Keller Williams Greater Columbus Auctions and Goodwill Columbus Car Auction and. His Facebook page is: www.facebook.com/mbauctioneer. He serves as Adjunct Faculty at Columbus State Community College and is Executive Director of The Ohio Auction School.