Since the virtually universal adoption of Article 2 of the Uniform Commercial Code, and in particular the UCC 2-328, interpreters of this rather short legal treatise have said that the UCC 2-328‘s wording:
- “Where a bid is made while the hammer is falling in acceptance of a prior bid …”
meant that somewhere between the “S” and the “D” of the word, “Sold!” denoted the start and end of the hammer falling.
Given this interpretation, if a bid comes in prior to the “S” [which normally would be accepted] or after the “D,” the auctioneer has no option to reopen the bid; however, if a bid is made while the hammer is falling — after the “S” and before the “D,” the auctioneer may reopen the bid.
Our question today involves, “When does the hammer start to fall?” In other words, does the “S” essentially denote the start of the hammer falling? It seems fair to assume that the drafters of the UCC 2-328 addressed this issue in particular for a reason.
If an auctioneer was “in the midst” of saying, “Sold!” it would be reasonable to assume most auctioneers could both recognize a bid in that split second, but not be able to stop saying, “Sold!” Therefore, a remedy was provided.
In 1972, The Virginia Supreme Court may have shed some light on when the hammer starts to fall. In the famous auction case Hoffman v. Horton, 212 Va. 565, 567, 186 S.E.2d 79 (1972) the Court ruled that an auctioneer may reopen the bidding if a bid was made “prior to or simultaneously with his final “fist in his palm.”
I’m not convinced the Virginia Supreme Court ruled in conflict with the UCC 2-328 in any other fashion than to move when the hammer starts to fall. It would seem the Virginia case suggests the hammer essentially started to fall once the auctioneer said, “at the beginning of the auctioneer noting he is about to say, “Sold!.”
While this isn’t our subject today, the UCC 2-328 in talking about bids, uses the word made rather than recognized or received. In Hoffman v. Horton, the Court ruled that a bid made (and not recognized nor received by the auctioneer) could be accepted after the hammer fell.
Generally, if an auctioneer said, “Folks, I’m about to drop the hammer …” would such announcement would signal an actual start to the hammer’s fall? In other words, could an auctioneer expressly delay (or move up) the start of the fall until a moment of his or her choice?
It seems unlikely the UCC 2-328‘s drafters meant anything other than the hammer falling in essence at the “S” of the word, “Sold!” They were certainly familiar with the concepts of “calling for bids,” “reasonable time” and “completion of the sale,” as used elsewhere in the UCC 2-328.
When does the hammer start to fall? It seems when the hammer begins to descend, or at the utterance of the “S” of the word, “Sold!” or other similar moment, unless the auctioneer expressly overrides this custom.
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.