About one year ago, we wrote about Selling choice in an absolute auction?.
In essence, we asked if an auctioneer offered the high bidder choice of a group of items in an absolute auction, where that bidder could choose one or more at that high bid price, can the remaining items be withdrawn by the seller?
One might conclude not, due to the UCC 2-328 indicating that in an absolute auction, once an item receives a bid within a reasonable time, it cannot be withdrawn.
Of course, in our case of there being 10 items to choose from, and the high bidder taking 4, have the other 6 “received a bid?” If so, they can’t be withdrawn.
Yet, how do we know?
It seems if the bidding had started at $5.00 and continued to $50.00, that one might conclude the $5.00 bidder would have taken them all … and if so, do we conclude all 10 received a bid?
But, we have no proof of that. In fact, even if the $5.00 bidder said, later, that he would have taken them all, maybe he actually wouldn’t have at the time?
Okay, okay … what if he said at time he bid $5.00 he said, “I’m bidding $5.00 and I’m going to take them all!?” Yet, does he actually take all 10 following the 5, 10 or 15 seconds after his pronouncement and the auctioneer announcing, “Sold!?”
Let’s look at this another way.
What if we considered “selling choice” to mean selling a right to choose, rather than any particular item? In other words, no items are offered — only a right is offered. Then if the high bidder earns the right to choose and chooses 4, the other 6 could indeed be withdrawn since they were never offered?
Assuming this, only one thing is being offered — the right to choose — and that right to choose cannot be withdrawn after receiving a bid within a reasonable time …
However, I’m not convinced.
It appears to me that selling choice is offering all those 10 items … since the high bidder can choose any of the 10. If the high bidder takes 4, and the 6 remaining are withdrawn, it would only take a disgruntled bidder to file suit claiming, “I bid on those other 6, and yet they were withdrawn.”
My recommendation for auctioneers selling items absolute is to not offer any item in any fashion for which the seller wishes to retain the right of withdrawal after any bids are made.
Of course, the seller retains the right of withdrawal if no bid is made within a reasonable time — and we think the emphasis should be on “no bid.”
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 adjunct faculty at Columbus State Community College and is Executive Director of The Ohio Auction School.