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  • Writer's pictureMike Brandly, Auctioneer

Auctioneers warranty all the time …

In the auction business, warranties are expressions (words) describing property up for auction. It might be the brand name, size, weight, color, material, model, condition, or other such information. Do auctioneers warranty property? Yes, all the time.

This isn’t a “warranty” in the sense that “I’ll fix it if it fails,” and rather a warranty created by affirmation, promise, description, or sample: https://mikebrandlyauctioneer.wordpress.com/auction-treatise/%c2%a7-2-313-express-warranties-by-affirmation-promise-description-sample/.

Such expressions take place through announcements, printed brochures or fliers, websites, signs, catalogs, emails, texts, and any other similar marketing. This information can be gathered from the seller, through personal observation, from other public information, or otherwise.

What if whatever is expressed is inaccurate? Generally speaking, the auction buyer may rescind the deal and receive a refund — if desired — or keep the property that was misrepresented. Does selling “AS IS” help? No, it doesn’t help in this regard.

We’ve written about the fallacy of disclaiming anything expressed numerous times including this treatise referencing Steve Proffitt’s thoughts: https://mikebrandlyauctioneer.wordpress.com/2021/07/08/the-three-big-auction-warranties/. If the auctioneer expresses it, it’s a warranty.

We’ve witnessed various attempts to circumvent this law. For instance, “I’m only telling you what the seller said,” or “Our descriptions may or may not be accurate,” or “You cannot rely on anything we say …” Nevertheless, if the auctioneer (or seller) expresses it, it binds the transaction with a warranty.

Auctioneers are typically agents for their sellers. Therefore the buyer’s recourse would be directed to the seller (possibly via the auctioneer) as the sales contract is between the buyer and seller. For the most part, auctioneers are empowered by their clients who expect them to manage these situations.

Therefore, it matters little if the auctioneer expresses the warranties or the seller expresses them. However, it becomes an issue if the auctioneer is expressing warranties the seller didn’t express, or worse yet didn’t desire to be expressed.

While buyers could request to rescind the deal, in these situations, a seller might have a claim against an auctioneer who expressed warranties the seller didn’t want (or authorize to be) expressed. Auctioneers should work to protect their sellers from such demands.

Lastly, how can auctioneers avoid (or manage) this warranty issue?

  1. Make sure whatever you are expressing is accurate.

  2. If you aren’t sure, don’t express it.

  3. Make buyers whole — if they desire — given there is misrepresentation.

  4. Stay in contact with your client and keep your principal informed.

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 formerly at 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 Auction 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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