auction, Auction Law, auctioneer, auctioneers, auctions, bidders, expressed warranty, National Auctioneers Association, UCC § 2-316, uniform commercial code
They get copied, and copied, and copied … and auctioneers really don’t pay any attention because it’s what some other auctioneer is doing, so it must be okay.
I’m guessing these were written by an attorney, but not for sure. Nonetheless, we’ve broken these down into four distinct pieces:
- The item is being sold as is, where is with no warranty, expressed or implied. Auctioneer is not to be responsible for the correct description, authenticity, genuineness, or defects herein, and makes no warranty in connection with the item being sold.
- All descriptions are given by the seller to the auctioneer to the best of their knowledge. Inspection prior to bidding is recommended and available. No allowance or set aside will be made on account of any incorrectness, imperfection, defect or damage.
- Any descriptions or representations are for identification purposes only and are not to be construed as a warranty of any type. It is the responsibility of the buyer to have thoroughly inspected the item, and to have satisfied himself or herself as to the condition and value.
- Auctioneer shall and will make every reasonable effort to disclose any known defects associated with this property prior to the close of sale. Auctioneer assumes no responsibility for any repairs regardless of any oral statements about the item.
First, and most notably, expressed warranties are being disclaimed here as not warranted. However, anything expressed constitutes a warranty and cannot be disclaimed. It’s considered an “irreconcilable conflict” to say “It is a Jet 2024 Lathe” but it might not be …
Second, the auctioneer appears to attempt to assign all responsibility for any of his or her expressions as what was provided by the seller. This is unlikely, and rather the auctioneer has written (expressed) the warranties and wants the buyer to instead think the seller did — and yet, the auctioneer expressed them nonetheless.
Third, and again, whatever is expressed is likely a warranty even if described as for “identification purposes only.” Indeed the buyer can preview so that implied warranties (if not rendered ineffective by conduct otherwise) can possibly be disclaimed, but not expressions.
Lastly, the auctioneer suggests he or she has disclosed all known defects — but can I rely on that statement? Further, any repairs expressed (orally) constitute a warranty, and as such the auctioneer has the responsibility to stand behind those warranties.
Much of the issue with these above terms is that auctioneers cannot disclaim what they express; read here Law Professor Kurt M. Saunders’ analysis: https://mikebrandlyauctioneer.wordpress.com/2021/06/21/can-an-auctioneer-disclaim-an-express-warranty/. Here is the essence of Professor Saunder’s argument:
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/
However, could possibly any puffing or sales talk not create a warranty — if the bidder understood such was “legal exaggeration.” Yet, there’s the risk a bidder could claim there was no such understanding. Is this all a “bluff” where the auctioneer assumes since these terms are commonplace, the buyer will tolerate them?
Finally, is it fair to say, “So if I can’t rely on anything this auctioneer says, can I rely on that statement that I can’t rely on anything he says?” If the point of this article wasn’t clear — maybe is it now?
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.
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Terrell (Terry) Cozart said:
Well, Mike, what are we supposed to say I’ve been an auction business for 40 years, and I use the word’s as is, where is no
Warranty is implied written or expressed. I thought I had my ass covered but it doesn’t seem so after reading your article. I’m semi retired and mostly do farm auctions in my area and real estate never had a problem.
Mike Brandly, Auctioneer, CAI, CAS, AARE said:
Terry — you can sell “AS IS” and “WHERE IS” but disclaiming warranties is a completely different matter.
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