What would you think as a potential bidder if an auction was advertised as having “all normal auction terms?” What would those be exactly? Who knows, right?
The issue is every auction needs terms and conditions to bind the bidders when bids are accepted. Do bidders have to register? Is property being sold “AS IS?” What are the acceptable payment options? Can property be shipped? When can property be picked up?
I would offer there is no “normal” in the sense that every auctioneer’s (and maybe every auction) has its unique terms and conditions. There is undoubtedly some commonality but bidders need specifics before bidding.
It’s worth reminding every auctioneer that the 2020 case Alex Lyon & Son, Sales Managers and Auctioneers, Inc. v. Leach, 844 S.E.2d 120 (W.Va. 2020) ruled that every bidder was to be held to the same terms and conditions. It follows that there would have to be particular terms and conditions.
We’ve endeavored to inform auctioneers of our experience in cases such as this, and the premise that treating bidders arbitrarily carries with it unnecessary risk: https://mikebrandlyauctioneer.wordpress.com/2022/06/24/auctions-equal-footing-binding-alike/.
The correct practice for auctioneers is to set your particular terms and conditions prior to the auction, and then not alter them thereafter for any bidder. These terms and conditions can involve “and’s” to make registration more restrictive, and/or “or’s” to make registration more permissive.
For instance, I can say bidders must have a driver’s license and a bank letter, or a driver’s license or a bank letter. In the former, both are required and in the latter, either are required. In either case, particular conditions are specified for registration.
Otherwise, all auctioneers need to have terms and conditions that are consistent with each other. As an example, one can’t promise to sell to the highest bidder (absolute) but reserve the right to refuse any bid for any reason. https://mikebrandlyauctioneer.wordpress.com/2023/08/08/absolute-and-the-auctioneer-can-do-what/
Generally, terms and conditions should be sufficiently restrictive to prohibit bidders the seller doesn’t want or need, but permissive enough to allow bidders the seller does want or need. Without particular terms and conditions, bidders can’t react accordingly.
Are “normal” (customary) terms and conditions good? In that sense, we have argued that bidders deserve some consistency throughout the auction industry: https://mikebrandlyauctioneer.wordpress.com/2023/06/30/auctioneers-and-customary/. In other words, normal is good, but sellers and bidders need to know in detail what your so-called “normal” is.
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 Auctioneers 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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