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The UCC § 2-316 is often cited in regard that auctioneers can disclaim an express warranty. For instance, I can say I’m selling a Vincent Van Gogh painting and I’m selling it “AS IS.” If you purchase this painting, and it’s not a Vincent Van Gogh, you’re out of luck.

I would hold you (the buyer of this not Vincent Van Gogh painting) is not out of luck. Rather, I would suggest that the UCC § 2-316 actually says:

Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other;

https://mikebrandlyauctioneer.wordpress.com/auction-treatise/%c2%a7-2-316-exclusion-or-modification-of-warranties/

Some have suggested a disclaimer noting “Auctioneer is not responsible for errors or omissions and waives any responsibility for such statements” would save one from being held to expressing [warranting] this is a Vincent Van Gogh painting.

This is not the case, as the UCC § 2-316 notes any expressions and waivers have to be consistent with each other. As such, it can’t be a Vincent Van Gogh painting … but maybe not. I would also offer that millions of people have E&O [Errors and Ommissions] insurance, suggesting this waiver alone likely isn’t effective.

This isn’t the first time we’ve written about this issue. https://mikebrandlyauctioneer.wordpress.com/2021/06/21/can-an-auctioneer-disclaim-an-express-warranty/. Auctioneers cannot disclaim what they say something is, noting it is “whatever” while also saying it maybe isn’t “whatever” because it can’t be both.

It’s important to note that the UCC § 2-316 notes [any] words or conduct tending to negate or limit warranty has to be consistent with the expressed warranty. As such, coupled with any expressions about auction items, a waiver such as “we’re not responsible for errors or omissions” would be inconsistent.

The other obvious problem here is if an auctioneer could always just say, “I made an error …” anytime the property was misdescribed, auctioneers could be held to no descriptions whatsoever, which is (inconsistent) untenable. With personal inspections, auctioneers could claim the buyer knew — like buyers can (and do) claim the auctioneer knew or “should have known.”

I understand unintentional occasional errors which are unfortunate but maybe acceptable, but blanket disclaimers relieving responsibility for what is otherwise said [expressed] over, and over, and over again are very likely not enforceable.

These types of issues get magnified as the subject property increases in value. As we’ve consulted in dozens of $1,000,000+ auction litigation cases, I can assure you everything gets magnified. There’s an easy fix here — stand behind what you say things are, and if you don’t know, don’t express that you do.

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, Brandly Real Estate & Auction, 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.