David Saks: Opinions versus Facts : Puffing Without Smoke ?

David Saks - Real Estate Broker - The Real Estate Mart of Tennessee, Inc. - 4040 North Watkins-Suite #4 - Memphis, Tennessee 38127 - Phone (901) 357-4663

Opinions versus Facts : Puffing Without Smoke ?


What kind of liability are we up against when we state our opinions?

Salespeople, brokers and company employees have to be careful with the statements they make to clients, customers and others in our profession.

Should we be certain that the party to whom we direct our statements understand whether the statement is an opinion or fact?

When is a statement of opinion permissable?

When can the question of deception arise in a statement of opinion?

How about statements of fact?

Should a statement of fact be considered an accurate statement, and when if not always?

Do you know what Puffing is?

It's not a nasty cigar or cigarette?

It's an outright exaggeration of the benefits of any property.

Is puffing legal?

You bet it is !

But you better make sure that your exaggeration can't be construed as fraudulent.

We all know that fraud is the misrepresentation of any material fact, and is perpetrated in such a manner as to harm or take advantage of anyone, which includes making false statements about a property and intentionally concealing or failing to disclose important information and facts about any property.

Now let's take a second and look at what constitutes broker liability.

An omission or misrepresentation doesn't have to be intentional for the broker to be held liable.

We have a little legal aspect to content with which we refer to as negligent misrepresentation. This little beast rears it's ugly head when the broker should have known that a statement about a material fact was, indeed, false.

The fact that the broker was actually ignorant about the fact is not good enough and won't be considered an excuse.

If a buyer relied on your statement you can and will be held liable for any damages that occur as a result of your statement.

Anytime something is intended to deceive a customer or client by deliberate trickery intended to gain an advantage, perpetrated by a company employee, or groups of employees, who makes deceitful pretenses, and that intentional deception results in an injury to a client or customer, that business, commercial or industrial activity, or corporation will suffer because their reputation is now perceived as counterfeit, worthless and void of integrity by consumers all over the nation.

It cripples the economy.

Broker's have been known to fail to perform specific acts, such as failing to bring the counteroffer to the buyer or seller. The broker may be held liable for damages resulting from a negligent omission.

What kind of experiences have you had with these issues?

David Saks

Time&Temp Memphis

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Comment balloon 2 commentsDavid Saks • April 27 2008 12:35AM


Opnions are optional at this point. Facts are called for. Just the facts, M'am, to quote an old show. What an agent wants and needs in a home is not relevent to the buyer's needs. Open ears, open minds and great customer service earns the paycheck.

Posted by Vickie Nagy, Vickie Jean the Palm Springs Condo Queen (Coldwell Banker Residential Real Estate) about 12 years ago
Sergeant. Friday would be proud of you, Vickie. :-)
Posted by David Saks ((retired)) about 12 years ago

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