I have taught classes centered on the UCC 2-328 for over 20 years.
In that time, I have covered each word of the UCC 2-328 (all 254 words) hundreds of times, to groups as large as 170 attendees in one room.
It was maybe nine years ago, when I was standing in front of a room full of auctioneers.
As I read part of this statute — someone asked, “Who can withdraw in the without reserve type?”
“The auctioneer,” I replied. “But it doesn’t say that,” he insisted.
“So what he’s saying is, there may be a missing noun in the UCC 2-328 (3) involving the concept of withdrawal,” I announced.
The UCC 2-328 (3) in part says:
“Such a sale is with reserve unless the goods are in explicit terms put up without reserve. In an auction with reserve the auctioneer may withdraw the goods at any time until he announces completion of the sale. In an auction without reserve, after the auctioneer calls for bids on an article or lot, that article or lot cannot be withdrawn unless no bid is made within a reasonable time.”
Clearly, and as the UCC 2-328 is otherwise, this passage suggests:
The “auctioneer” may withdraw the goods in the with reserve auction type.
If an article or lot is selling without reserve, the article or lot can be withdrawn … by whom?
Of course, it’s natural to assume the auctioneer holds this right, and/or the seller as we discussed here: http://mikebrandlyauctioneer.wordpress.com/2012/09/03/seller-withdrawal-or-auctioneer-withdrawal/
Yet, our questioner was suggesting the UCC 2-328 (3) is technically silent on the latter.
Our analysis was two fold:
A right of withdrawal would of course be held with someone of authority to do so. That would necessarily be the auctioneer or seller, or seller’s designee (POA, Executor, Administrator, Guardian, etc.)
Analogous to basic contract law — the offeror extends the offer, and therefore maintains the sole right of retraction, or withdrawal.
So, we believe it’s appropriate to assume the inference of the words, “by the auctioneer” in the sentence, “In an auction without reserve, after the auctioneer calls for bids on an article or lot, that article or lot cannot be withdrawn [by the auctioneer] unless no bid is made within a reasonable time.”
Certainly common and longstanding interpretation of the UCC 2-328 (3) remains that this right of withdrawal is with the auctioneer (and therefore the seller.) It may be prudent, however, to note the exact wording and be sure to infer accordingly.
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. His Facebook page is: www.facebook.com/mbauctioneer. He serves as Adjunct Faculty at Columbus State Community College and is Executive Director of The Ohio Auction School.
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