We auctioneers have been told to leave out (or not emphasize) the word “auction” in our auction advertising. The reason is that people are shopping for the “what” and not the “how.” I get it — and this basis for this rule is arguably well founded.
However, it seems once we as auctioneers removed the word, “Auction” or words, “Public Auction” from prominent spots in our advertising, auctioneers are finding it difficult to replace those word(s) with clear, meaningful text and/or quite frankly not being careful enough.
Take the following: “Must sell to the public regardless of price.” Does that mean selling to the highest bidder regardless of price, or selling at a price the buyer alone determines? I’m asking the question because words matter and selling regardless of price is distinctly different than selling to the highest bidder regardless of price.
There is no more famous case than Carlill v Carbolic Smoke Ball Company [1892] EWCA Civ 1 (07 December 1892) where in regard to offers and invitations to offer — specific words matter. In this case, the court ruled this above advertisement, “Constituted a binding unilateral offer that could be accepted by anyone who performed its terms.”
In this respect, “Selling regardless of price” (or similarly wording such as “set your price”) might be considered an offer to sell with the bidder/buyer being able to literally set the price. I don’t think this is what any auctioneer is intending to do, but all it would take is one significant asset with a savvy and resourceful bidder/buyer to move this issue into some courtroom in the United States.
If something is selling by auction, it is probably prudent to note that it is, and possibly accompany such wording (“auction,” for example) with “to the highest bidder” if without reserve (absolute.) Further, if selling with reserve, maybe some wording suggesting “selling by auction …” would be sufficient.
Too, it’s important to know that “selling to the highest bidder” has been ruled by the courts as not necessarily selling without reserve, but the public certainly sees it that way and to avoid litigation altogether, better words may be prudent.
While offering in regard to a contract requires the intent to contract, the words “selling regardless of price” alone might legally suggest that intent. Removing the word “auction” from all our “auction” advertising may be a good idea from a marketing perspective but could cause legal issues if replacement wording is not cautiously placed.
Said another way, despite the “what” being in focus for the public, the “how” may be just as important to ensure we auctioneers are not deemed manifestly offering property for sale, and instead inviting offers and/or determining the price collectively.
Mike Brandly, Auctioneer, CAI, AARE has been an auctioneer and certified appraiser for over 30 years. His company’s auctions are located at: Mike Brandly, Auctioneer, RES Auction Services and Goodwill Columbus Car Auction. He serves as Distinguished Faculty at Hondros College of Business, Executive Director of The Ohio Auction School, an Instructor at the National Auctioneers Association’s Designation Academy and Texas Auction Academy. He is faculty at the Certified Auctioneers Institute held at Indiana University and is approved by the The Supreme Court of Ohio for attorney education.
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