We’ve written about sales talk or puffing more than once, including here: https://mikebrandlyauctioneer.wordpress.com/2011/11/15/puffing-versus-misrepresentation-at-auction/.
Puffing constitutes generally 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.
As auctioneers (and everyone else) with an approaching United States presidential election in less than a year, we can certainly expect one or more candidates to be expressing a bunch of sales talk; for instance, beginning sentences or proclamations with:
- A lot of people are saying …
- People think it’s going to happen.
- Everybody’s talking about it.
- They are saying …
- Everyone is now saying …
- That’s just what I had heard.
- I’ve heard that …
- What I’ve heard …
- I’ve been hearing …
- A lot of people are tell me …
- I’ve seen this, and I’ve sort of witnessed it.
I suspect it’s a given all politicians are “trying to sell something” in regard to convincing us they are deserving of our support. Auctioneers similarly want sellers to essentially vote for us and bidders to essentially vote for our property for sale.
A notable change I’ve seen and heard as I travel across the United States as a contract auctioneer, presenter and expert witness — I’ve started to hear these same prefatory phrases in my line of work — in court, depositions and discussions with other auctioneers.
For instance, an auctioneer recently told me that, “Everyone is now saying that you can reopen the bid anytime you want …” and another announced during a deposition that, “A lot of people are telling me we can advertise ‘as-is’ and then say anything after that.”
I’m not convinced that “Everyone is now saying … “ anything — and further even if “A lot of people are telling you something …” that doesn’t make it right. It appears to me that certain political sales talk is encroaching into our everyday language.
My 7-year-old granddaughter recently came to me to say “A lot of people are saying that coffee isn’t good for you, grandpa.” “A lot of people are saying?” I asked her. “Yep, that’s what I’ve heard” she replied.
There’s not anything wrong with sales talk (puffing) so long as the recipient of such knows it’s sales talk. However, does the speaker/announcer/orator in these cases hold this as sales talk or rather as facts?
This is our subject today. What if someone appears to be puffing while actually holding that he or she is proclaiming facts? Said another way, can auctioneers proclaim what they believe are facts with the recipient of those so-called facts considering it sales talk?
Generally speaking, the burden of harm lies with the recipient of the claim. Therefore the question typically becomes, did the consumer suffer harm by relying on what appeared to be facts styled as sales talk?
For example, let’s say an auctioneer is selling a coastline condominium unit at absolute auction and he says, “A bike path and walking trail will be opening nearby — people think it’s going to happen.” What if nobody really thinks a bike path nor walking trail will be opening soon nearby? Is that puffing or misrepresentation?
One of the bidders asks the auctioneer, “So people do think it’s going to happen? The bike trail?” The auctioneer replies, “I’ve been hearing that a bike path or walking trail is forthcoming ..” Another bidders interrupts, and says he works in the city manager’s office and he knows of no plans for a bike path nor walking trail nearby. The auctioneer replies, “A lot of people have been telling me …”
Maybe the better question is, what if an auctioneer is puffing and upon further query, continues to puff more specifically in response to questions, is he still puffing, or is he now potentially misrepresenting?
Further, what if only when in court or under legal scrutiny the auctioneer says, “Well, I said ‘They are saying … but that was just sales talk?'” Can sales talk be presented affirmatively as fact and then those same statements displayed as facts be then conveniently held as merely sales talk subsequent?
Here’s an article by attorney Kevin C. Baltz where you can read about distinguishing between puffing (sales talk) and misrepresentation (including some case law:) https://www.butlersnow.com/2017/01/puff-puff-sue-distinguishing-aggressive-sales-pitch-actionable-misrepresentation/.
I’m a big advocate and somewhat prolific user of sales talk … but when our world is filling up with what clearly appears to be puffery held as fact, it seems we’ve crossed a line which becomes (and should become) actionable. It strikes me auctioneers (and everyone else) need to be careful borrowing these particular political customs.
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.