I’ve probably written about this issue more than any other. The question is essentially “Why are auctioneers intentionally misleading buyers?” Is someone telling them to intentionally mislead buyers … for example, about what they’re selling — or to say “Sold!” and not mean it?
It’s not just whoever is telling them, and much more what is telling them. What is telling them they can mislead, misrepresent, lie, etc. are terms which essentially say, “You can’t rely on anything I tell you, and nothing here is guaranteed accurate, and you the auction bidder/buyer is entirely responsible for discerning …”
However, you might be reading this and of course note that those terms do not say to mislead, lie nor misrepresent. These terms merely disclaim and/or assign liability to the buyer. Yet, many other auctioneers are reading these same terms and saying, “Hey, now I can say (or not say) anything since I’m no longer responsible.”
As we’ve noted, this is hardly the first time we’ve addressed this issue, and those auctioneers asking, “Who’s suggesting this?” know that. For example, we wrote specifically about auctioneers’ terms saying they are not responsible for anything: https://mikebrandlyauctioneer.wordpress.com/2020/05/10/im-not-responsible-for-anything/.
Just the other day, my phone rings — for maybe the 20th time in the last 6 months — from an attorney describing severe buyer mistreatment and terms which say that the auctioneer is not responsible [disclaimer] and/or the buyer is entirely responsible [assignment.] The follow-up question is typically, “How can an auctioneer do this?”
Auctioneers do this because they feel empowered with their newly minted terms and conditions providing them cover for any mistakes, and such leads them to discover those same terms might protect them from misleading, lying, and misrepresentation. Apparently, it’s too seductive to resist.
We argued at the start of the pandemic in March 2020 that auctioneers couldn’t necessarily waive or assign responsibility for someone becoming infected at your live auction event. Of course, we were countered that the proper terms and conditions provided complete protection.
As we noted in a subsequent article, we were probably correct that all that responsibility couldn’t be assigned nor waived (https://mikebrandlyauctioneer.wordpress.com/2020/08/24/more-on-covid-19-magic-waivers/), but the cat was out of the bag — with auctioneers revising their terms to completely absolve (not really) them from any responsibility, and thus not taking prudent precautions.
We have held for years that all bidders have to be held to the same terms and conditions, but you were told bidding was a privilege and not a right, and that you could capriciously and arbitrarily register anyone at your discretion. The Supreme Court of Appeals of West Virginia agreed with us (https://mikebrandlyauctioneer.wordpress.com/2020/10/02/terms-conditions-fairness/) but you heard the contrary and now assume the risk of varying your terms at your will.
It’s really no different than the famous phrase, “All announcements made day of sale take precedence over printed material,” https://mikebrandlyauctioneer.wordpress.com/2012/11/18/announcements-made-day-of-sale-take-precedence/. This was only meant to correct advertising mistakes (unintentional,) not license a bait and switch marketing plan (intentional) — but how do some auctioneers use this phrase today?
I suppose we could tell drivers the speed limit is 70 and they may or may not drive 70 miles per hour, more or less. But additionally, tell them there is no highway patrol enforcing the speed limit (you can’t be held responsible for your speed,) and those same drivers are driving 80, 85, 90, 100 miles per hour. The speed limit didn’t change, but the perceived enforcement did, and now drivers are breaking the law and more importantly driving unsafely.
Auctioneers have to be careful who they are listing to, and where they are securing advice. As I have repeatedly noted, Kurt Bachman, Attorney at Law in LaGrange, Indiana appears to clearly and without question provide the most intellect, reason, and insight as an attorney focusing on auction law. Kurt regularly writes articles and other publications for the National Auctioneers Association.
Our writings beginning in 2009 have attempted to keep you as an auctioneer out of court, rather than attempting to win in court, or worse yet, lose in court. https://mikebrandlyauctioneer.wordpress.com/2018/07/26/auctioneers-you-want-win-in-court-or-stay-out-of-court/. The class we offer at the Certified Auctioneers Institute deals with auction-related disaster prevention and recovery.
I’m not suggesting any malicious behavior, and rather pointing out the unfortunate result of any recommendations regarding auctioneers being held “not responsible for anything.” Regretfully, some auctioneers feel with no such responsibility, they have no duties — most notably honesty, integrity, and fair dealings. https://mikebrandlyauctioneer.wordpress.com/2021/02/15/treating-bidders-with-honesty-integrity-and-fair-dealings/.
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.