We’ve written about this issue numerous times. Something is held to be a certain type, condition … only to be disclaimed by the famous “You’re buying ‘as is’ with non guarantees nor warranties regardless of any statements made by any persons in or at the auction.”
We continue to ask the same question over and over again: Is it perfect and/or flawless or is it not? The advertising notes the vehicle is perfect and flawless (largely the same thing possibly) but if we buy it and it’s not, what is our recourse? I’m sure the response would be, “you bought it as is, without any warranties …”
Yet, I reply that the vehicle is not perfect nor flawless, and you said it was. How can you say it’s perfect and flawless, and then when it’s not, you say I have no recourse? Auction buyers are far too used to this unreasonable treatment — such that they don’t receive from any other vendor.
One argument is that contracts — in this case between the buyer and seller — must have a meeting of the minds. If I’m buying a perfect and flawless 1968 Cadillac and you are selling a less than perfect and flawless 1968 Cadillac, do we even have a contract at all?
Regardless, this is what makes buying at auction less than enjoyable. As a buyer, I want to believe your description of this 1968 Cadillac, but I hesitate to bid knowing I can’t believe you. Further, you won’t let me bid at all unless I agree to your terms noting that I can’t believe anything you say.
Could the words “perfect” and “flawless” be simply sales talk? Puffing? In other words, expressions known by the recipients to be legal exaggerations? On the contrary, could “perfect” and “flawless” be expressed warranties, to the extent those warranties aren’t disclaimed otherwise?
We previously analyzed puffing versus misrepresentation here: https://mikebrandlyauctioneer.wordpress.com/2011/11/15/puffing-versus-misrepresentation-at-auction/. As we noted, United States Code TITLE 15, CHAPTER 22, SUBCHAPTER III notes possible civil liability for misrepresenting property in a sales transaction.
Some courts, as an example, view the notation of “perfect” and “flawless” versus the property isn’t necessarily either as an “irreconcilable conflict” as both statements can’t be true — in other words, it is either perfect and flawless or it’s not. Since I mentioned a court viewed this as such should give you enough reason to change your advertising techniques.
Some auctioneers augment their auctions of “perfect” and “flawless” property with no opportunity for interested parties to inspect prior. So, it may not be “perfect” nor “flawless” but you have to roll the dice in regard to how imperfect or flawed the vehicle is.
We’ve sold real and personal property at auction for over 35 years all over the United States. We find accurate descriptions, ample preview opportunities and refunds to buyers when we have misrepresented by expression or omission produces more confidence in our buyer pool — and thus we get more in proceeds for our sellers.
You are free to misrepresent, not offer preview opportunities, and not refund in any case — but to what cost to your seller? We would offer your sellers — at minimum — need to know your policies upfront so they can make informed choices in regard to which auctioneer they should hire.
By the way, I’m in the market for a 1968 Cadillac but I’m not bidding on yours because (1) You are potentially lying about its condition and (2) You require I accept your disclaimer that I agree you are free to lie about its condition. That’s at minimum one less bidder …
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.