9.2 Staging, Preview, Condition Reporting & 'As Is, Where Is' Disclaimers

9.2 Staging, Preview, Condition Reporting & "As Is, Where Is" Disclaimers

Lot division decides what is sold. Staging, preview and condition reporting decide how well it sells and who bears the risk when a buyer is disappointed. Florida's answers come from two places at once: the UCC as adopted in Chapter 672, F.S., and the disciplinary grounds in Chapter 468, Part VI.

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Staging the Goods

Merchandising presentation is not decoration. It has three concrete jobs:

1. Make lots visible. A lot a bidder cannot see is a lot a bidder will not chase. Elevate small goods; do not sell from the floor if a table is available.
2. Make lots verifiable. Where safe and practical, allow power-up of electronics, cold-start of equipment, and handling of small goods. A bidder who can verify bids higher.
3. Make lots loadable. Sequence heavy goods so removal does not block the ring, and place items requiring machinery where the forklift can reach them.

Florida-specific staging considerations recur on the exam and in practice: outdoor sales require weather contingency for afternoon thunderstorms; humidity and salt air affect the presentation of ferrous goods and the condition of paper, textiles, and electronics; and heat management for both goods and bidders is a real operational constraint at summer sales.

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The Preview and Its Legal Weight

A published preview is more than a courtesy. It is what makes the implied-warranty disclaimer stick.

F.S. 672.316(3)(b) provides that when the buyer, before entering into the contract, has examined the goods as fully as he or she desired, or has refused to examine the goods, there is no implied warranty as to defects which an examination ought in the circumstances to have revealed.

+-------------------------------------------------------------------------+
|  WHY THE PREVIEW MATTERS LEGALLY                                         |
+-------------------------------------------------------------------------+
|  Published preview offered  -->  bidder examined or declined to examine  |
|                             -->  F.S. 672.316(3)(b) engages             |
|                             -->  no implied warranty for defects an     |
|                                  examination should have revealed        |
+-------------------------------------------------------------------------+
|  BUT: express warranties from catalogue copy survive.  F.S. 672.313      |
+-------------------------------------------------------------------------+

Operational implications:

• Publish the preview in the advertising and the catalogue, with specific dates and hours.
• Do not obstruct examination. Refusing reasonable inspection undercuts the very provision you are relying on.
• Record the offer. On timed online sales where physical preview is limited, say so explicitly and provide extensive photography, because a defect that no examination could have revealed is not covered by 672.316(3)(b).

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Writing Condition Reports

The rule is the same as for catalogue copy, and it is worth stating twice: describe, do not conclude.

Each right-hand phrase is a statement about condition — one of the three nouns in F.S. 468.389(1)(b), alongside use and value. Each left-hand phrase is a fact a photograph can corroborate.

[!TIP] State the scope of what you did not do. "Not tested," "not examined out of frame," "movement not opened" are the most protective four-word phrases in cataloguing. They convert an implied assurance into a disclosed limitation.

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How Far "As Is, Where Is" Actually Reaches

This is the single most-tested merchandising concept, and the answer is a boundary, not a blanket.

[!WARNING] The disclaimer does not run against the regulator. An "as is, where is" clause allocates risk between the seller and the buyer. It has no effect whatsoever on the DBPR's authority to discipline a licensee under F.S. 468.389(1)(b) for misrepresenting property, and it does not immunize the licensee against a FDUTPA claim under Chapter 501, Part II, F.S., which reaches unfair or deceptive acts in trade or commerce regardless of the parties' contract language.

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Removal, Storage and Risk of Loss

The "where is" half of the phrase carries its own set of terms, and the exam tests whether they were agreed in advance.

• Removal deadline. State the date and time by which the buyer must remove purchases, and what happens after it — storage charges, abandonment, or resale.
• Loading. State whether the auction provides labour or machinery, and whether the buyer must supply rigging for heavy lots. "Loading assistance is available for lots under 200 lb; buyer is responsible for rigging on Lots 400-455" prevents the most common post-sale dispute.
• Risk of loss. In the absence of agreement, F.S. 672.509 allocates risk of loss where the contract does not require the seller to ship the goods, and for goods held by a bailee. The practical answer is to state expressly in the terms of sale that risk of loss passes to the buyer at the fall of the hammer, so the point is contracted rather than litigated.
• Escrow interaction. None of these terms change the licensee's obligation under F.S. 468.388(10)(a) to deposit sale proceeds received for another person into an escrow or trust account within 2 working days after the auction when settlement is not made immediately.