We all want to be auctioneers who are perceived as honest, having integrity and a reputation of fair dealing, right? In fact, common law dictates such for customers (bidders/buyers) participating in our auctions.
Yet, we don’t have to be. The law (apparently) lets us auctioneers disclaim everything (possibly not expressed warranties) but what are the implications of such? I would submit we have a substantial risk of being perceived as dishonest, lacking integrity and unfair dealing.
I don’t know how you sleep at night, but I can assure you auctioneers who are honest, have integrity and a reputation of fair dealing sleep better. In fact, one reason they can is they haven’t had to retain an attorney nor are they in pending litigation.
As a frequent auction expert witness, I am privy to lawsuits involving auctioneers all across the United States and what issues or circumstances lit that desire to sue. As we’ve continually held, it’s much better to stay out of court, rather than winning or losing in court.
That particular treatise is here https://mikebrandlyauctioneer.wordpress.com/2018/07/26/auctioneers-you-want-win-in-court-or-stay-out-of-court/ where part of this analysis is noted.
As well, there is an increasing number of “Unfair and deceptive acts and practices statutes” being enacted across the United States, giving consumers (the public) more rights of recourse in cases of misrepresentation and underrepresentation of products sold which are being cited in courtrooms.
Nonetheless, let’s look at some common examples of likely being in court (#1) and staying out of court (#2) in regard to what we’re discussing here:
- You allow absolutely no previews nor inspections of what you are putting up for auction and sell everything “as-is.”
- You sell “as-is” and allow people to preview and inspect prior to purchase.
- You describe what you are selling in detail, but disclaim any responsibility for errors and/or misrepresentations.
- You describe what you are selling in detail, and stand behind your descriptions in all cases including in regard to errors or misrepresentations.
- You take no effort to inspect nor analyze anything you’re selling and sell “as-is” disclaiming all possible responsibility.
- You take reasonable steps to inspect and analyze what you are selling, and disclose — at minimum — any latent or hazardous conditions.
- You purposely and intentionally misrepresent what you are putting up for auction, but sell “as-is” allowing no buyer recourse.
- You make every effort to accurately and honestly represent what you are putting up for auction, and allow returns/exchanges if you are wrong.
- You say, “Sold!” and thus the buyer may not void the contract under any circumstances, yet you can reopen the bid at will.
- You say, “Sold!” and mean it. The contract formed is subject to what was being sold and how it was described, and both parties are otherwise bound.
- I’ve been retained in cases of auctioneers selling “as-is” but offering no opportunities for previews.
- I’ve been retained in cases where the auctioneer has misrepresented the subject property despite disclaimers.
- I’ve been retained in cases of auctioneers not disclosing latent and/or hazardous issues.
- I’ve been retained in cases where the auctioneers have intentionally misrepresented (lied) about what was selling.
- I’ve been retained in cases where the auctioneers reopened the bid, especially arbitrarily and capriciously.
Otherwise, my phone hasn’t rung even once with any of the #2 items above. When people feel harmed (despite legal disclaimers — in fact, sometimes because of) they often find an attorney and discuss possible recourse.
Too, you may want to read through the American Bar Association‘s treatise on
“safe selling” including a link to online sales and warranties with notes on the exclusion or disclaiming (or not) of such: https://www.americanbar.org/groups/business_law/migrated/safeselling/.
While you’re reading this or clicking on any links, I’m probably taking a nice restful nap … well, maybe not but I could if I wanted to. Here’s my hope you can sleep better as well.
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.