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There likely isn’t an auctioneer on earth who hasn’t uttered the words, “as is” regarding how bidders are buying property at auction. However, “as is” is widely misunderstood and if an auctioneer is attempting to disclaim expressions or implications, there is reason to read this treatise further.

First, auctioneers cannot disclaim expressions. For instance, if an auctioneer says, “We’re selling these two antique railroad lanterns from the 1920’s — as is” there’s a problem if these aren’t “antique,” and/or if they are not “railroad lanterns,” and/or if they are not from the “1920’s.” In other words, auctioneers can’t disclaim what they express (orally or in writing.)

However, as the current law is written, auctioneers can maybe disclaim implied warranties concerning merchantability or fitness only if such disclaimer is conspicuous and (if disclaiming fitness) in writing. Conspicuous means such writing stands out from other writing and/or otherwise draws the attention of the bidders.

We emphasize the word “maybe” in the above paragraph, in that this disclaiming of implied warranties possibly protect auctioneers and sellers, but might not: https://mikebrandlyauctioneer.wordpress.com/2020/10/27/unless-the-circumstances-indicate-otherwise/.

Of course, you’ve heard that bidders are held to terms no matter what … when in fact, bidders aren’t held to auctioneers’ “as is” disclaimers unless they are in writing and clearly seen in contrast to other writing or otherwise clearly conspicuous; for instance, different colored font, larger print, italic, and the like.

Obviously, the problem with disclaiming merchantability in some way other than in writing — defies our longstanding belief anything of this nature needs to be in writing, as otherwise, it’s difficult to prove it was indeed (expressed) disclaimed.

The question remains, however, if you can really disclaim anything — expressed or implied — given such disclaiming could involve circumstances that indicate otherwise. As we previously wrote, was there misrepresentation, concealment, or a lack of an opportunity to preview?

Too, there is some discussion in the legal community regarding if implied warranties for fitness for a particular purpose are actually expressed warranties after all. It might seem the “bargain” is fundamentally the same citing what the seller is essentially offering and the buyer’s resulting expectations.

We were hired some time ago in a rather material case where a buyer and his attorneys were arguing he was not held to an “as is” disclaimer and was due a refund of his purchase price. The entire auction terms and conditions (including disclaimers) were in terrifically small print, with no print more conspicuous than any other.

The auction company appeared to argue that the “as is” (or similar) disclaimer was announced. While we fully expected this to got to court — where we might find their [public] assessment of whether announcing constitutes “conspicuous” and if “in writing” (merchantability or fitness?) was then actually required, the case was just settled the other day – and as such our analysis is here.

While I cannot disclose the details of the confidential settlement, I suspect having terms and conditions in terribly small print was not helping the auction company’s case. As I have noted, we endeavor to help auctioneers doing the right thing and to help the auction industry when they are doing the wrong thing: https://mikebrandlyauctioneer.wordpress.com/2018/08/06/helping-auctioneers-or-the-auction-industry/.

Nevertheless, again we note that bidders are not always held to your auction’s terms and conditions. In fact, this is more evidence that the property auctioneers are selling (for clients) should conform to all descriptions and quite frankly not imply anything that’s not true. It might be this easy to remember.

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.