auction, auctioneer, auctioneers, auctions, contract, higher bid, in acceptance of a prior bid, Kentucky, may reopen, repopen the bidding, retraction, ringman, sold, tie bid, UCC 2-328, while the hammer is falling, withdraw
If there is one fundamental misunderstanding within auction-related law, it is when (or if) an auctioneer may legally reopen the bidding after saying, “Sold!” For the most part, the answer to the question, “Can auctioneers reopen the bidding?” is “Legally, they cannot.”
As we have noted before, auctioneer bid calling is a series of oral contracts. A bid is received from a bidder and is accepted by the auctioneer on behalf of the seller. In a without reserve auction, this oral contract is contingent upon the auctioneer not receiving a higher bid, and the bidder not retracting his bid. In a reserve auction, a third contingency is present, which is that the seller not withdraw the item.
So, generally, if there is no higher bid, and no bidder retraction, and no seller withdrawal, then the “fall of the hammer” (or, typically the word, “Sold!”) means it’s over. The contract with this high bidder is firmed and the seller may now not withdraw, the high bidder may not retract, and the auctioneer may not accept a higher bid.
However, occasionally auctioneers think that they must reopen the bidding — due to some event such as someone else thinking they were the high bidder (when they were not), or the ringman having one bidder, and the auctioneer having another, or two bidders holding up their bid numbers upon, “Sold!” or otherwise.
Can auctioneers reopen the bidding?
The UCC 2-328 clearly points out that the only time an auctioneer may reopen the bidding is when a bid comes in “while the hammer is falling” in acceptance of a prior bid. In other words, the auctioneer has William at $750 and is asking $800; as the hammer falls (as the auctioneer says, “S … O … L … “) a bid comes in from Paul for $800.
Of course, typically the “D” in “Sold!” is then pronounced, and the UCC 2-328 then says that the auctioneer “may” reopen the bidding, or declare the goods sold under the bid on which the hammer was falling.” So, the auctioneer here may say that William owns this item for $750, or accept the $800 from Paul and continue the bidding.
Many auctioneers mistakenly reopen the bidding under these circumstances:
- Paul bids $800 5 seconds before the auctioneer says, “Sold!” to William
- Paul and William both raise their bid cards upon, “Sold” for $750
- The ringman has Paul at $750 and the auctioneer has William at $750
- Paul otherwise believes he is in at $750 when the auctioneer has William at $750
We also note that Kentucky has a law which permits auctioneers to reopen the bidding at some auctions if it is “immediately apparent” the ringman had one bidder, and the auctioneer had another. We wonder if this law would be upheld by a court in light of considerable contract law precedent as well as Kentucky’s other law, namely the UCC 2-328.
Some auctioneers have the policy that they will never reopen the bidding, under any circumstances, and we tend to think those types of policies are maybe easier for the general public to understand when compared to the UCC 2-328’s narrow exception to that policy and the phrase, “may reopen.”
Can auctioneers reopen the bidding? Probably not nearly as much as they do.
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.