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  • Writer's pictureMike Brandly, Auctioneer

Anything I say is not binding?

Let’s just say that an auctioneer’s terms note:

Buyer agrees that any oral representation made by the auctioneer shall not modify these “AS IS – WHERE IS” with all faults disclaimers.

Let me get this straight … I’m buying it AS IS with no warranties even though you described this lot as a “Model 19A, Serial 138.1904a, 90-volt transformer that works perfectly …?”

What if it’s not a Model 19A? What if it’s not 90-volt? What if it’s not a transformer? I bring it back to you desiring my money back and you tell me I purchased it “AS IS, WHERE IS?”

Is it any wonder that some don’t like buying at an auction? Is it any wonder why there are lawsuits when materially valuable property is misrepresented at auction?

This regards a phone call we received months ago and these terms were emailed to me shortly afterward. I told the attorney who inquired that I could help because, in my opinion, such terms were literally nonsense.

We’ve written before about auctioneers’ inability to disclaim expressed warranties and that there’s little or no merit in disclaiming implied warranties:

Maybe the confusion is the word “expressed?” Expressed means “words are used” including oral or in writing. Or, is the confusion about the word “warranty?” A warranty constitutes a promise. It becomes part of the contract between the buyer and seller — and if that promise is broken, there’s a breach of contract.

So if an auctioneer says (or puts in print) it’s a “Model 19A, Serial 138.1904a, 90-volt transformer that works perfectly …” that’s an expressed warranty. As such, this warranty cannot be disclaimed as this would constitute two statuses that are not consistent with each other.

Said another way, it can’t be a “Model 19A transformer” and possibly not a “Model 19A transformer” at the same time. Again — to use my word — this would be nonsense.

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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