as is, as-is, auction, auctioneer, auctioneer education, auctioneers, auctions, memes, open for inspection, reopen the bid, sharing misinformation, tie bids, tort law, UCC § 2-316 (3), UCC § 2-328, where-is
I must see 100’s of memes on my average day. The ones involving mathematics usually get my attention since I have an appreciation for math (via The Ohio State University.) Possibly my first writing concerning mathematics and memes (of a sort) involving the auction business was 2016? https://mikebrandlyauctioneer.wordpress.com/2016/08/01/an-auction-where-21/.
Today, we’re inundated with memes of all kinds, and they may be the major spreader of misinformation on the Internet. I suppose because they look printed (expressed) with a certain font, color, size and agree with our prior thinking … they must be true? That’s just it — because you tend to believe them, the meme creators keep cranking them out.
I would offer that when it comes to memes, we auctioneers should presume them to be false unless we can verify the information somewhere else — where the meme content is not copied word-for-word, indicating you don’t have a secondary source. What might be surprising is verifying this misinformation isn’t really that challenging.
The risk for auctioneers sharing memes made up of (largely) misinformation? How about we change that sentence to, “auctioneers sharing largely misinformation?” or “auctioneers sharing misinformation?” Is no auctioneer worried about his or her creditability? You share lies with your friends, promote conspiracy theories, and I’m supposed to trust you otherwise?
Let’s talk about auctioneer education in this regard: Did you ever hear or see in a meme …
- The Uniform Commercial Code § 2-328 can be modified and is only a “gap filler?” You likely did. Did you also hear that any such modification cannot be manifestly unreasonable? Probably not.
- The Uniform Commercial Code § 2-316 allows auctioneers to waive any implied warranties of merchantability or fitness? You likely did. But did you also hear that such can’t be unreasonable or that circumstances can indicate otherwise? Probably not.
- That there were “tie bids” that could be reopened by the auctioneer? You likely did. Did you also hear that actually the UCC § 2-328 doesn’t address tie bids at all, and rather a higher bid coming in … Probably not.
- That you can have different terms for different bidders? You likely did. Did you also hear that a recent court case ruled that you can’t treat bidders differently beyond your terms? Probably not.
- Auctioneers can sell “as is” and “where-is” without offering an opportunity for preview? You likely did. However, did you also hear that tort law suggests that lack of disclosure is actionable? Probably not.
- That a particular auctioneer policy “Will be enforced and/or upheld in court?” You likely did. Did you hear that it’s better to stay out of court, contrasted with winning in court? Probably not.
- That I am an auction expert witness “coming after auctioneers?” You likely did. Did you also read (and hear) that I am not a party to any of these auction-related lawsuits? Probably not.
Of course, I say, “Probably not” despite trying to educate auctioneers and others on this platform and otherwise — and with some lack of disclosure on my part being bound to keep certain information confidential and/or with nondisclosure agreements, I can’t release some information that indeed might be additionally valuable.
In regard to what I can’t talk about, at least yet, I am able sometimes to write a related article (or discuss in a classroom setting) with a different example to talk about the subject principle without breaching any confidentiality restraints. And further, in speaking with over 78 attorneys involved in auction cases, some attorneys have asked not to be identified publically because they risk harassment.
Memes, graphics, pictures with no text or link(s) are routinely used to spew false information. Further, any particular spewing without an author’s name or discernable source should automatically be suspect to you. We wrote about the source of any information being the most important consideration: https://mikebrandlyauctioneer.wordpress.com/2020/12/31/auctioneers-the-source-matters/.
You might have noticed the words, “unreasonable” and “manifestly unreasonable” in my aforementioned list. While “unreasonable” is generally thought of as “not governed by reason” it is admittedly more a subjective than objective evaluation. Regardless, as a frequent auction expert witness, I likely find myself — more than anyone else — in situations where these assessments are discussed …
Here is a list of similar words (including unreasonable) discussed in many of these auction cases: https://mikebrandlyauctioneer.wordpress.com/2018/01/08/unfair-unreasonable-inequitable-what-does-it-all-mean/. Most are more subjective than objective, but people seem to want my opinion regarding how they apply to their circumstances, and I offer those opinions.
While there is some auction case law, there isn’t an abundance that precisely applies to today’s auction marketplace. It’s good that auctioneers are indeed staying out of court for the most part, but when they find themselves in court in any material dispute, we are usually contacted. Here’s our site where we discuss those services (with absolutely no memes): https://auctionlegalconsulting.com/.
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, and an Instructor at the National Auctioneers Association’s Designation Academy and Western College of Auctioneering. He is faculty at the Certified Auctioneers Institute held at Indiana University and is approved by The Supreme Court of Ohio for attorney education.