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We have written lately and otherwise about auctioneers saying something is “something” and then disclaiming that this same property is “something.” An auction bidder or even seller might ask, “Is it what the auctioneer said it is?”

Most recently, we published noting — again — that disclaimers concerning expressed warranties have to be consistent with those related to the expressed warranties. This would include statements like “All properties are sold “AS IS,” with no expressed or implied warranties or guarantees whatsoever” being consistent with any other expressions.

Our most recent writing is here: https://mikebrandlyauctioneer.wordpress.com/2022/05/28/irreconcilable-eo-disclaimers/. Our just prior writing on this subject is here: https://mikebrandlyauctioneer.wordpress.com/2021/06/21/can-an-auctioneer-disclaim-an-express-warranty/.

So, for example, there are various scenarios regarding a Vincent Van Gogh painting (?) being put up for auction:

  1. It is a Vincent Van Gogh painting described as such.
  2. It is a Vincent Van Gogh painting described as something else.
  3. It is a Vincent Van Gogh painting described as a “painting.”
  4. It is not a Vincent Van Gogh painting described as a Vincent Van Gogh painting.

In #1, this is the best circumstance in that it is a Vincent Van Gogh painting and described as a Vincent Van Gogh painting. The seller is happy, and the buyer and seller are bound to the contract.

In #2, this is unfortunate. This is a Vincent Van Gogh painting but described as some other artist, or attributed otherwise (misrepresented.) The seller is very likely not happy and the buyer-seller contract is voidable by the buyer.

In #3, this is unfortunate. This is a Vincent Van Gogh painting described as just a painting (underrepresented.) The seller is very likely not happy and the buyer and seller are bound to the contract.

In #4, this is unfortunate. This is not a Vincent Van Gogh painting described as a Vincent Van Gogh painting (misrepresented.) The seller is maybe happy and the buyer-seller contract is voidable by the buyer.

In summary:

  • In #1, the contract is firm.
  • In #2 the contract is not firm for the buyer (voidable) because the painting was misrepresented and as such violates the expressed warranty. The auctioneer has likely breached his duty of “reasonable care” owed the seller.
  • In #3, the contract is firm. The auctioneer has likely breached his duty of “reasonable care” owed the seller.
  • In #4, the contract is not firm for the buyer (voidable) because the painting was misrepresented and as such violates the expressed warranty. The auctioneer has likely breached his duty of “reasonable care” owed the seller.

For those countless auctioneers still holding they can disclaim responsibility for all expressions, be sure you cannot. Whatever you say, print, distribute, etc. is an expressed warranty and likely no disclaimer whatsoever inconsistent with what you said, printed, distributed, etc. is effective.

Here is Law Professor Kurt M. Saunders‘ (Department Chair and Professor of Business Law at California State University, Northridge) treatise on this subject: https://mikebrandlyauctioneer.files.wordpress.com/2021/06/20210614194411815.pdf.

Further, some of this responsibility for “seller happiness” lies with the seller. Not only should the seller see that it’s determined (with reasonable certainty) if this is — or isn’t — a Vincent Van Gogh painting but also find the right auctioneer to market and put it up for auction.

Lastly, “reasonable care” might vary from auctioneer to auctioneer given their training and experience. It seems clear auctioneers holding themselves out as experts in a particular field have additional duties: https://mikebrandlyauctioneer.wordpress.com/2017/01/06/the-burden-of-auctioneer-prowess/.

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.