We’ve written about auctioneer disclaimers several times, including this treatise in 2012: https://mikebrandlyauctioneer.wordpress.com/2012/05/23/auctioneer-disclaimers/.
We noted in that 2012 article, “If you are selling or buying at auction, expect both the risks and the benefits of those auctioneer disclaimers.” Indeed buying and selling at auction should be a sharing of risks and benefits. Yet, where did that delicate balance go?
As I have many times reviewed contracts, terms and conditions, and other disclosures as an expert witness, I can answer my own question. Auctioneers more recently have more or less attempted to disclaim everything.
Sitting in a law office in Florida, I remarked to the attorney who hired me that this auctioneer had more or less “disclaimed everything under the sun.” He wasn’t responsible for anything he said, printed, held, suggested, announced, implied, represented …
Further, he held himself harmless from any representations as to condition, age, genuineness, value, or any other “determinative factors.” He also disclaimed any expressed or implied warranties of suitability or marketability.
Just the other day I was parked behind a gravel truck at a stoplight with the all-too-common sign on the back, “Stay back 50 feet. Not responsible for damage to vehicles or persons.” So, gravel truck operators don’t have to secure their loads?
I’ve always felt this type of gravel truck sign was meant to discourage someone from seeking damages from a rock falling off. In other words, let’s say a rock does indeed fly off and chip my windshield. I see the damage when I get home and think, “Well, they aren’t responsible …”
Bidders at your auction likely must acquiesce and sign whatever to get to participate. With 264 disclaimers in those terms, it’s essentially, “take it or leave it” in regard to accepting — even if they haven’t read nor understood them.
In court, our team argued there was no equitable balance of risks and benefits — and the auctioneer/seller got all the benefits and the bidders/buyers were burdened with all the risks. In fact, our lead attorney asked the auctioneer on the stand, “What risks did you have?”
There was a long pause when the auctioneer said, “Well, I could have fallen over dead of a heart attack … “ “And how would that have benefited our client?” the attorney countered. The auctioneer replied, “My assistant auctioneer isn’t that good …?”
Ultimately, our side prevailed, with the judge essentially saying that as a customer, the auctioneer could not waive (disclaim) honesty, integrity, nor fair dealing — and that he failed to meet any of those standards.
This isn’t a standard I’ve seen recommended very much lately — it will be interesting if this all-about-me, you-don’t-matter terms and conditions withstand the test of the market and the courts here forward.
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.