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Kurt Bachman is a skilled attorney and auctioneer. We don’t always agree, but his recent article regarding “Does your chant create an expressed warranty,” is spot on … we wrote about puffing (sales talk) before: https://mikebrandlyauctioneer.wordpress.com/2011/11/15/puffing-versus-misrepresentation-at-auction/

Puffing is: an exaggeration of facts as one would expect from any person trying to sell something, where the bidder (or buyer) cannot hold the salesperson to those opinions as fact. On the other hand, misrepresentation (or an expressed warranty) are expressions where a bidder can hold the auctioneer/seller responsible. As Mr. Bachman suggested, those expressions could be made during bid calling as well.

We’ve long suggested that bid calling should be made up of the the “have” and the “want” in an approximate 20-30% to 70-80% ratio, with other filler words or sounds to make the chant easy to listen to and encourage more bidding. If those filler words — however — included “This one is like new” or “For sure this is road-ready …” (for example) it’s possible a buyer could hold the auctioneer/seller to that affirmation.

A related law is https://mikebrandlyauctioneer.wordpress.com/auction-treatise/%C2%A7-2-313-express-warranties-by-affirmation-promise-description-sample/ where most notably “any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.”

It may be advisable for auctioneers to leave out any affirmations in the their “bid calling” chant; that is, unless those statements are obviously sales talk or truthful otherwise. The problem is, differently in commerce generally, and especially online, there isn’t as much sales talk and bidders/buyers may consider your sales talk to be an affirmation of condition or the like.

Interestingly, Mr. Bachman doesn’t advocate altering the basics of the UCC § 2-313 although others give that exact advice. For instance, instead of descriptions creating an expressed warranty, why not include in the terms, “Bidders are not to rely on anything expressed by auctioneer?” In other words, we can lie to you and you have no recourse.

While a topic of a future article, this is the exact type of thing (waiving responsibility/liability and/or assigning risk) that angers bidders/buyers (and encourages them to sue) and worse yet encourages them to buy from retailers (or anyone) other than auctioneers. Thus, assigning risk can actually create more of it.

In fact, in two such material lawsuits in which we were asked to consult, buyers were suing auctioneers because the descriptions didn’t match the property. Of course, the auctioneers had “non-reliance” clauses in their terms. We wrote about one of those cases here: https://mikebrandlyauctioneer.wordpress.com/2018/03/19/an-auction-disclaimer-i-saw-in-court/

In summary, it is important for auctioneers to be careful about what expressions they use in describing property including when bid calling. And as I repeatedly say, bidders/buyers have choices and I think it’s fair to say they tend to choose vendors/sellers who are telling them the truth over the same who are choosing to use deception.

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, an Instructor at the National Auctioneers Association’s Designation Academy and America’s Auction Academy. He is faculty at the Certified Auctioneers Institute held at Indiana University and is approved by the The Supreme Court of Ohio for attorney education.