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  • Writer's pictureMike Brandly, Auctioneer

No warranties, but call and ask us?

It sometimes gets even more crazy. The auctioneer is selling personal property “AS IS” and is disclaiming any warranties expressed or implied. So, the bidders can’t rely on anything the auctioneer says or implies. Then, the auctioneer says, “And if you have questions, just call and ask us …”

What good would that do? I can call and ask but you could lie to me again, right? Remember, I as a bidder can’t rely on any of your expressions (words) or implications (behavior.) Or, as I’ve suggested before since I can’t rely on your expressions, maybe your disclaimer is a lie?

Maybe I’m in luck? Could your expressions on the phone counter your terms? Override your prior expressions that anything you say can’t be relied upon? I doubt it unless on the phone you possibly said, “You can rely on this information.” By the way, you did invite me to call.

Why is it so difficult to say something is something and stand behind that description? Or, if you don’t know what something is, don’t say it? You as an auctioneer could remember just these two things and help your seller avoid a mountain of unnecessary risk.

“AS IS” and “WHERE IS” are not a license to lie. It puts the buyer on notice that the property is selling in its current condition and location. Yet, anything you tell me as a buyer is a warranty and you are held to any implications unless I can preview it.

We wrote that a “warranty” is not a guarantee that the property works properly (unless you say that it does.) A warranty is what you say (with words) about the property; implications are what you indicate by your behavior or omission.

We have discussed bluffing — similar to the truck you’re following in traffic with the sign “Not responsible for windshield damage …” It’s likely the truck’s driver/owner would be responsible for not reasonably securing the load, but the sign suggests not — hoping you in the car behind agree.

The problem remains if your windshield is damaged, your attorney will know that such a disclaimer is ineffective. Just like we noted here a rather famous individual had his disclaimer described as a “fantasy world.”

Likely your strategy should be based upon the value of property in your auction. Are you “selling” $1, $10, or $100 stuff? Or are you putting up for auction $100,000, $1,000,000, $10,000,000 property? A warranty on a $10 item is far different than on a $1,000,000 property, in that as the property increases in value, so does the risk to the seller.

For those [surprisingly] unfamiliar, here’s the gist of the law I’m referencing: UCC § 2-316 says, in part:

(1) 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; but subject to the provisions of this Article on parol or extrinsic evidence (Section 2-202) negation or limitation is inoperative to the extent that such construction is unreasonable.

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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