Bidders are Bound by Organizational Disclaimers That are not Deceptive and that do not Violate Public Policy

The Georgia Court of Appeals in Wright v. Safari Club Int'l, Inc., 322 Ga. App. 486 (Ga. Ct. App. 2013) held that disclaimers are enforceable under Georgia law if they do not violate public policy. This case related to an auction in which the winning bidder brought suit against the organization conducting an auction for breach of contract and violation of the Georgia Fair Business Practices Act (“FBPA”).  The court found that the claims would not stand because bidders are bound by the organization’s disclaimers.  However, the court held that the disclaimers must not be deceptive. Disclaimers and qualifications are not deceptive if they are sufficiently prominent and unambiguous to change the apparent meaning of (other unconditional) claims and to leave an accurate impression. The court in this case found that the organization's disclaimer that there were no refunds and it was not liable for non-performance was valid and enforceable as a matter of law.  Thus it defeated the bidder's breach of contract claim. 

In Wright, a bidder sued a non-profit organization Safari Club International, Inc. (“SCI”) for breach of contract and violation of FBPA. SCI conducts convention and auction in which attendees have the opportunity to bid on various goods, services and hunting excursions, which primarily have been provided to SCI by third parties (“outfitters”). Wright (“Appellant”) has been a member of SCI and attended auctions conducted by the organization. 
Wright won an auction for hunting and fishing trip offered and conducted by Waterberg Big Game Hunting, Fishing & Photographic Safaris (“WABI”). WABI subsequently canceled portions of the safari.  Consequently Wright brought suit against SCI for breach of contract and violation of FBPA.  SCI moved for summary judgment which the trial court granted.  This appeal followed. 

The appellate court analyzed the facts and found that, before the commencement of auction, SCI had sent to its members, including Appellant, various publications promoting the auction which contained SCI's “Auction Program Policies.” The Program Policies were prominently placed. Id. at 488. They appeared either in the back or back and front of the brochures, and included various subheadings, which were in all capitals and set off by bolder type and larger font. One of the subheadings was titled “Auction Buyer Policy,” and provided that “All sales are final and there will be no exchanges or refunds on items or hunts.” Id. at 488-489. 

The appellate court also observed that immediately following the auction, Appellant signed a one-page “Safari Club International Auction Sales Invoice and Buyer's Agreement” (“Buyer's Agreement”). The Buyer's Agreement included a provision titled “Non-Warranty and Disclaimer of Liability.” Id. at 490. The tile was printed in all capitals in larger, bolder print and contained language similar to that contained in the pre-auction promotion publications, including that the “purchase is non-refundable under any and all circumstances … .” Id. In addition, the Buyer's Agreement provided that SCI did not perform any of the services covered by the Buyer's Agreement and did not have any responsibility for the delivery or quality of the services or for any loss or damages related to the performance or nonperformance of the services. Id.

To be deceptive, a business practice must have “the tendency or capacity to deceive.” Id. (quoting  Jeter v. Credit Bureau, 760 F2d 1168, 1172 (II) (11th Cir. 1985)). Disclaimers and qualifications are not deceptive if they are “sufficiently prominent and unambiguous to change the apparent meaning of (other unconditional) claims and to leave an accurate impression.”  Id. (quoting  Removatron Intl. Corp. v. FTC, 884 F2d 1489, 1497 (IV) (1st Cir. 1989)).
The court in this case found that the “disclaimers in this case were sufficiently prominent and clear. The Auction Program Policies appeared immediately before or immediately after the sections cataloging the items and services for sale, and each section, including the section titled “Auction Buyer Policy,” was clearly delineated. Likewise, the heading in the Buyer's Agreement clearly and unambiguously identified the contents of that section as “Non-Warrant[ies] and Disclaimer of Liability,” and the relevant text of the disclaimer was clearly written and easily understood.” Id.  The court noted that the Appellant had opportunity to read the Auction Buyer Policy that included the no refund policy before he attended the auction.  Id.  Also, Wright could read the Buyer's Agreement before he signed it. Therefore, nothing was withheld from the Appellantor falsely stated to him. Id.  The provisions which the Appellant contended were deceptive appeared on the face of the agreement and were available for the Appellant to read and to accept or reject before signing the agreement.  Id.

Based on the above discussions, the appellate court concluded that the he trial court did not err by finding that to the extent Appellant’s FBPA claim was based on the disclaimers, that claim failed as a matter of law.