For centuries, auctioneers have “disclaimed” certain responsibilities in their auction terms and conditions.
Certainly the most common used in the auction business is, “All sells as-is and where-is.”
But first, what is a disclaimer?
In tort law, a disclaimer is some statement which seeks to limit responsibility and/or assign responsibility to someone else, in order to avoid liability.
As such, the term “All sells as-is and where-is” means to tell the buyers that their inspection matters and whatever condition the property is in when they purchase it, that’s the condition they will receive. Secondly, once the property is sold, the buyer is responsible for taking possession wherever the property is located.
For instance, if a pottery vase sold and then the buyer discovered it was cracked, he would not have recourse if he purchased it “as-is.” Too, the buyer would have the complete responsibility to remove the vase and take possession of it if he purchased it “where-is.”
Common auctioneer disclaimers found today include:
- All sells as-is and where-is with no guarantee or warranty expressed or implied.
- All information contained in this package and any advertisements was obtained from sources believed to be accurate. However, no warranty or guarantee, expressed or implied.
- We shall not be liable for any errors or the correctness of the information provided in this package or in any advertisements or materials disseminated pertaining to the property.
- We are not responsible for your bidder card and you are responsible for any item sold to your bidder number.
- Not responsible for accidents.
- All announcements made the day of sale take precedence over any and all previously printed matter.
- The auctioneer and agents of the auctioneer make no guarantee or warranty, actual or implied as to the accuracy of the information.
- You are responsible for your purchases; once you buy it, it’s yours.
- We disclaim all other warranties, including any implied warranties of merchantability and fitness.
- These measurements came from reliable sources but cannot be warranted or guaranteed. All drawn property lines and acreage values are approximate.
… and there are many others.
With all these disclaimers, one might wonder what purpose auctioneer disclaimers serve? For the most part it seems to break into two basic premises:
- It’s sellers who are often attracted to selling at auction due to their desire to not guarantee nor warranty the property they’re selling.
- Buyers are generally accustomed to these types of disclaimers, and seem to accept them as standard practice. Buyers seem to bid accordingly.
Could an auction be conducted with no disclaimers?
Although that would be very unusual, I suppose it is possible. However, with the lack of disclaiming or assigning responsibility, it might well suggest to the bidders and buyers that the auctioneer (and/or the seller) are responsible … for all kinds of things.
Buyers might buy something and then later say:
- Well, I got it home, and the color just isn’t quite right … so I want to bring it back.
- I changed my mind and … so I need to return the item for a refund.
- Gosh, I thought it would fit in my car, but it won’t … so I need you to deliver it.
Auctioneer disclaimers are a material part of the auction business, and they have been such for thousands of years. They play an important role in the very delicate balance between what the seller wants to receive, and what the buyer is willing to give.
If you are selling or buying at auction, expect both the risks and the benefits of those auctioneer disclaimers.
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 Auctions and Goodwill Columbus Car Auction. His Facebook page is: www.facebook.com/mbauctioneer. He is adjunct faculty at Columbus State Community College and is Executive Director of The Ohio Auction School.