In a matter of 24 hours, I was asked essentially the same question twice by two auctioneers from different parts of the country.
The question was, “Can an auctioneer stop an absolute auction once underway …?”
Let’s take a look at this sign. “Everything will be sold to the best and highest bidder …?” Not necessarily.
The UCC 2-328 says that in a without reserve (absolute) auction that after the auctioneer calls for bids on an article or lot, that article or lot cannot be withdrawn unless no bid is made within a reasonable time.
In this light, the UCC 2-328 treats the word, “auction” not as the entire event, but rather as each article or lot. Therefore, an auctioneer could sell lot #1, lot #2, lot #3 … and then stop the auction and not sell lot #4 nor any other lots.
The UCC 2-328 denotes when the article or lot cannot be withdrawn and therefore permits withdrawal before the article or lot is put up for auction. Since in our example, lot #4 and further lots haven’t been put up for offers yet, those lots can indeed be withdrawn.
The auctioneers who questioned me ask further, “But can an auctioneer advertise that he is selling, ‘Everything …’ and then not? Isn’t that misrepresentation?”
While it might seem so, the courts in England (Harris v Nickerson (1873) LR 8 QB 286) and the United States (Drew v. John Deere Company of Syracuse, Inc., 19 A.D.2d 234, 241 N.Y.S.2d 267, 269-270 (1963)) have continually held that an auction advertisement noting, “We’re selling everything” is merely an intention to sell, and not a promise to sell.
Of course, if the advertisement was placed while lacking the genuine intent to sell all the items, then that might constitute misrepresentation. Certainly intent is something that can be hard to quantify. We wrote about similar auction advertising here: http://mikebrandlyauctioneer.wordpress.com/2013/02/15/the-words-selling-at-auction/
In an absolute auction can an auctioneer open one lot for bidding, and receive a bid within a reasonable time, and then withdraw that lot? No. However, if that lot isn’t put up for sale, it absolutely can be withdrawn from the event.
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, Keller Williams Auctions and Goodwill Columbus Car Auction. He serves as Adjunct Faculty at Columbus State Community College, Executive Director of The Ohio Auction School and Faculty at the Certified Auctioneers Institute held at Indiana University.
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