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Can auction bidders be held to terms and conditions which say any oral representation made by the auctioneer shall not modify “as is, where is” and related disclaimers? The short answer is no, and rather any oral representations are binding upon the auctioneer and cannot be disclaimed.

If you care to read the legal analysis, here is my article regarding Law Professor Kurt M. Saunder’s (Department Chair and Professor of Business Law at California State University, Northridge) treatise on this subject: https://mikebrandlyauctioneer.wordpress.com/2021/06/21/can-an-auctioneer-disclaim-an-express-warranty/.

If you prefer an example over reading the legal basis, here’s one: You are selling a piece of jewelry and say it’s an “18K Diamond Necklace” put up at auction “AS IS, WHERE IS.” You sell it and the buyer discovers it isn’t 18K nor a diamond. Your “AS IS” disclaimer is worthless, as you can’t disclaim what you [orally] express something is or isn’t.

We’ve written about this many times, including also here: https://mikebrandlyauctioneer.wordpress.com/2022/05/31/is-it-what-the-auctioneer-said-it-is/ and here: https://mikebrandlyauctioneer.wordpress.com/2022/05/28/irreconcilable-eo-disclaimers/. Quite frankly, it’s a fairly easy concept for most to grasp.

Another way auctioneers are attempting to disclaim what they say is to say the seller told them what to say … and since the auctioneer is typically merely only the agent for the seller, and putting the seller and high bidder into a contract, this is no more or less effective than the auctioneer saying it. More here: https://mikebrandlyauctioneer.wordpress.com/2021/07/05/can-auctioneers-disclaim-what-they-tell-you-their-sellers-said/.

I suspect for many auctioneers, this is just doing “what we’ve always done …” and not so much intentional malice. However, auctioneers are supposed to know better, and there are plenty of educational opportunities for any auctioneer desiring training. Undoubtedly for a few, thinking they “know everything” isn’t the best plan.

We say again: Those outside the auction business likely wonder why auctioneers just can’t tell the truth, be honest, describe what is selling accurately, and be good agents of their sellers? It’s as if bad behavior (lying, omitting, misrepresenting) is preferred and it becomes fashionable to [attempt to] disclaim everything.

This is the third such article (of three) in which auctioneers are using completely unenforceable terms and conditions. Here’s the first such article we published on July 12, 2022: https://mikebrandlyauctioneer.wordpress.com/2022/07/12/no-liability-for-accuracy-errors-or-omissions/. Here’s the second such article we published on July 14, 2022: https://mikebrandlyauctioneer.wordpress.com/2022/07/14/may-attempt-to-describe/.

Incidentally, we capitalized “AS IS and WHERE IS” above demonstrating that if your like disclaimer is not conspicuous, it may not be effective no matter: https://mikebrandlyauctioneer.wordpress.com/2021/09/06/are-you-selling-as-is-or-as-is/. Maybe another reason to become more educated on what is enforceable and what isn’t.

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 has served as faculty at the Certified Auctioneers Institute held at Indiana University and is approved by The Supreme Court of Ohio for attorney education.