As an expert witness in auction cases, I’m seeing more and more fine print — particularly in auction terms and conditions. The thinking is obviously the auctioneer doesn’t want the bidder to be able to read or understand those terms, but wants to hold that same bidder/buyer to every word.
Tess Wilkinson-Ryan, Assistant Professor of Law and Psychology, University of Pennsylvania Law School wrote this extraordinary treatise on the subject of fine (small) print:
Auctioneers are certainly not alone utilizing fine print in all kinds of terms and contracts. It seems every website, every software update, every retailer has fine print in almost every document. Why so small or fine? It certainly isn’t because they want their customer/client to be able to read it.
When I started selling real property at auction in 1990, it wasn’t long before others I worked with were expanding terms and conditions, contracts, and the like. Soon after, I insisted we pare down our paperwork where we could and make all the print easier to read. My philosophy was then as it is now — if we are going to hold someone to something, let’s make it so they can see it and understand it.
Are contract terms in very small print enforceable? Largely courts have ruled any size print is enforceable in light of the other party signing it — indicating a meeting of the minds. One argument is, “If you couldn’t read it nor understand it, why did you sign it?” I can answer that in part — because we feel we have no choice.
However, “having no choice” makes an argument for a contract of adhesion. Such contracts that are one-sided, drafted by an entity with stronger bargaining power where the other party feels he or she has no choice but to sign can be thrown out on grounds there is no meeting of the minds, or could otherwise be ruled unconscionable increasing the odds of being unenforceable due to “shocking the conscience” of a court.
The other trend we’ve noted lately is not only fine print but the total number of pages. We posed the question: “Should it be on page 1? Page 10? Page 126? Page 583?” suggesting having important information on Page 583 is abhorrent, maybe just like having 583 pages at all: https://mikebrandlyauctioneer.wordpress.com/2020/10/29/what-page-should-that-be-on/.
One theme we’ve repeatedly noted in our writings is that the easier — more pleasurable — we make it for our bidders, the more bidders we’ll have. It might go without saying, the more (content) bidders we have, the better for our seller and auctioneer. In fact, as an auctioneer, you owe your client to maximize the bidder pool to an extent in order to maximize price.
Lastly, it’s not just the terms and conditions regardless of the size of print or number of pages. All contact with bidders should indicate you the auctioneer care about their participation and want them to return and buy from you again. More bidders produce more sellers and more sellers produce more bidders if we as auctioneers care enough to pay attention.
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, RES Auction Services, and 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 is 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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