advertising, agreement, as-is, auction, Auction Law, auctioneer, auctioneers, auctions, breach of contract, buyers, client, contract, disclosure, guarantee, knowledge, marketing, seller, sold, warranty
I get a laugh sometimes when I review auction terms and conditions. I get an even bigger chuckle when I see that the terms and conditions of the auction are to be enforced strictly but the property descriptions are to be interpreted subjectively.
So the auctioneer/auction company is able to succinctly express the precise terms and conditions of the auction — you must pay within 36 hours, you can/can’t preview, pickup must take place within 48 hours … but so far as the property, we think it’s this size, this color, this model, but you can’t hold us to any of that. Really?
This is the age of auction marketing we’re in — the terms and conditions are all about what the bidder/buyers must do, must understand, must agree to and yet the property descriptions are all based upon inspection, opinion and perspective where the auctioneer/seller feels they have no responsibility (nor any interest) in being held to any specific terms and conditions regarding all that.
The misunderstanding here is that the contract for sale at auction between the seller and buyer includes all those adhesionary terms and conditions but the property descriptions with all this subjective, relative, personal, instinctive, intuitive information is separate and distinct, and they’re not. The auction sales/purchase contract contains both the terms and any property descriptions.
So, bidders/buyers are held to whatever the auctioneer/seller says, except whatever the auctioneer/seller doesn’t want to say, specifically. “You have to pay within 36 hours of the auction — not 36.1 hours, nor 36.01 hours — no exceptions,” yet, “The boat is 36′ but we don’t guarantee or warranty that dimension — you must measure yourself.”
We have explored even more abhorrent terms, conditions and property descriptions before, where auctioneers basically have said, “We can and will lie to you … so good luck with your bidding today.” https://mikebrandlyauctioneer.wordpress.com/2015/10/23/you-cant-believe-anything-i-tell-you/
We aren’t suggesting a particular solution to this circumstance — other than to say that if auctioneers can work to have specific, detailed, expressed, non-negotiable terms and conditions, could we work to have at least some assurances or guarantees about the property to provide our bidders/buyers?
Does the clock start on that you-must-pay-within-36-hour thing at the beginning of the auction (1:00 p.m. CST, which would make the deadline 1:00 a.m. two days later) or 36 hours after the end of the auction (which would be 2:43 a.m. two days later?) Is this subject to the bidder’s/buyer’s interpretation? I doubt it.
Yet, is the boat 36′ long? What if it’s 36.5′ long? 35.5′ long? An auctioneer would likely say that he said 36′ long but the actual length is subject to error, and such description is not guaranteed nor warrantied. In other words, in one instance 36 is precisely the number, and otherwise, 36 is not necessarily the number at all.
As I’ve noted before, prospective auction buyers have choices. Those looking for a 36′ boat can look at auctions, boat dealers, owner-sellers, eBay.com and a myriad of other places. Auctions might offer the chance of a deal, but at what actual price? The cost at auction includes that the boat may indeed not be 36′ at all — and the buyer may have no recourse; yet don’t pay within that 36 hour window and expect to get sued or banned from future auctions …
I spoke to a group of over 36 (37 or more) real estate licensees the other day — mostly younger, less experienced agents. I was answering questions about both real and personal property auctions. There was certainly interest, but many expressed their desire to buy — particularly personal property — with some guarantee and/or warranty, and return policy which I told them was typically not the case with auctions. I heard the word, “Amazon” several times … and even heard that word combined with the words, “good deal.”
As I have repeatedly said, the auction industry should be careful with overwhelmingly one-sided, adhesionary terms and conditions especially including that nothing about the subject property is guaranteed nor warrantied — in essence anything that favors the auctioneer is strictly interpreted, but anything that benefits the buyer (if there’s anything that benefits the buyer) is not. Bidders and buyers have choices, and maybe more importantly … so do we as auctioneers.
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, RES Auction Services and Goodwill Columbus Car Auction. He serves as Distinguished Faculty at Hondros College of Business, Executive Director of The Ohio Auction School and Faculty at the Certified Auctioneers Institute held at Indiana University.