It seems no matter the issue, some people always assure everyone all we need is yet another disclaimer and/or waiver (attempting) to shield the seller/auctioneer. Such was the case when we wrote about “magical disclaimers” in regard to the Coronavirus (COVID-19) pandemic.
Here’s that prior article where we noted soon after that Catherine Sharkey, a law professor at New York University School of Law suggested waivers like this only provide limited protections: https://mikebrandlyauctioneer.wordpress.com/2020/06/12/magical-auctioneer-disclaimers/.
Kurt Bachman, Attorney at Law & Auctioneer recently wrote for the National Auctioneers Association magazine about such disclaimers coupled with affirmative actions (temperature checks, social distancing, questionnaires, and the like.) Kurt’s summary at the end of his article noted:
What approach is best? The best and safest approach would be to use a combination of disclaimers and affirmative actions. Nothing prevents their joint use. A simple reliance on disclaimers ignores the fact that we do not know how the courts will analyze them and weather that will provide the protection desired.
What? We don’t know if a disclaimer will provide the protection desired? But we were assured that’s all we needed? We should take affirmative actions to help shield and/or protect our bidders?
A more important lesson here might be that affirmative actions are prudent — to protect the bidders and the general public as well as the seller. As we’ve repeatedly said, it takes bidders/buyers to make auctions work. An auction with no bidders can be a lonely event.
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 Supreme Court of Ohio for attorney education.