I’m reviewing some terms and conditions for a without-reserve “absolute” auction and specifically trying to reconcile these terms with the UCC § 2-328, and wondering how this all works. I note here the auctioneer says he can:
Refuse any bid
Combine any lots
Divide any lot
Withdraw any lots from the sale
The auctioneer then says he can do any of these (4) things “at any time for any reason whatsoever.” We would suggest he maybe could save some space, and just say “I can do anything …”
Specifically, what are the issues here? For starters, once a bid is placed at this absolute auction on any lot within a reasonable time, the lot must be sold (cannot be withdrawn) and not combined with any other lot, divided, or modified, and further no higher bid can be refused.
These terms and conditions lack any good faith, diligence, reasonableness, and care for starters. Secondly, these same terms and conditions moreso describe a “with reserve” auction, yet, he’s advertising a without reserve — absolute — auction.
Understandably many auctioneers haven’t considered what is good faith, diligence, reasonableness, or care. We wrote about all those concepts here: https://mikebrandlyauctioneer.wordpress.com/2021/04/22/good-faith-diligence-reasonableness-and-care/.
Yet you’re told you can modify the UCC § 2-328 but you can’t if your modifications are in bad faith, lack diligence, are not reasonable, or lack care. https://mikebrandlyauctioneer.wordpress.com/2022/04/22/variation-by-agreement-not-uniform/.
I’ll write again as I’m able as these terms and conditions appear to be a topic in an upcoming court case. I’m doubtful the auctioneer can defend them, and I will likely argue they represent complete nonsense. Why is that? Because they are complete nonsense.
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 Auction 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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