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The auctioneer goes out to the auction location on Monday, May 17 to take some pictures and finish up the inventory.
The neighbor comes over and asks about the John Deere riding mower. The auctioneer says, “Would you like to offer something for it?”
Legally, at this moment, the auction has commenced?
There are apparently some who believe this is the case. In other words, if an auctioneer asks for bids prior to the scheduled date/time of an auction, the auction actually begins at that moment (in our example here, 12 days ahead of time).
This is obviously false for the following reasons:
- The contract between the auctioneer and seller would likely not authorize this, as such contracts typically dictate a certain auction date/time.
- Auctioneers cannot act unilaterally, without their client’s knowledge and consent. Beginning the auction 12 days early would likely be a breach of contract and fiduciary duty.
- The auction is advertised as beginning at Noon on May 29. Starting it early constitutes false and misleading advertising.
- It is generally considered that an auction starts only when an auctioneer “in unmistakable language” starts the auction. The question, “Would you like to offer something for it? is certainly different language than, for example, “Ladies and gentlemen, the auction is on.”
- Is not placing an auction advertisement in the newspaper and/or on the Internet a form of asking for bids? If so, the auction would begin as soon as the first ad appeared, and probably without the auctioneer even present at the auction location.
- How would we distinguish in our above example between the the auctioneer asking if the neighbor wished to bid on the John Deere riding mower at the auction May 29, or right now?
- How would we distinguish in our above example between the the auctioneer asking if the neighbor wished to bid on the John Deere riding mower at the auction May 29, or place an absentee bid to be executed May 29?
- What if an auctioneer didn’t use the words, “bid” nor “offer?” What if he said, “What would you give for this John Deere riding mower?” Would that be considered asking for a bid, or just asking for an opinion?
- What if the auctioneer stood out in the front yard, without anyone else present, and yelled, “Would anyone want to bid on this John Deere riding mower? Does asking for bids require at least one potential bidder to be present? If so, auctioneers would be advised to not practice their bid calling anytime prior to the auction, as this might initiate the auction.
We jest a bit here to make our point.
Auctions begin when auctioneers say they begin, and not before due to any action or implication unless in unmistakable language or action the auctioneer begins an auction early.
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 is Executive Director of The Ohio Auction School.