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man_woman_computerJoe lives in the Fairfax, Virginia area and has been attending auctions since 1985.

His interest in auctions began as a child, when he would go to auctions with his mother, Carol, in the Roanoke, Virginia area. They would attend 2-3 auctions every week, sometimes traveling 100’s of miles.

Carol collected a number of items, but had a particular affinity for primitive painted furniture. Joe’s collecting has more so focused on art, including abstracts and mixed media. In fact, his interest in art found him at George Mason University where he majored in, and now teaches art history.

One afternoon, Joe and his friend Natalie were in his office when Joe noticed an upcoming online auction with some art of his liking.

    JOE: “I think I’m going to register for this auction, Natalie … and like many others, I see here that my bid is irrevocable.”

    NATALIE: “Irrevocable? In other words, once the auction is over, I suspect?”

    JOE: “No, I think it’s that once I place the bid, I can’t take it back.”

    NATALIE: “Well, Joe, remember you teach art history, not commercial law. Let me take a look at it.”

    JOE: “Exactly why I have a law professor as a good friend; I help you with your art choices, and you help me …”

    NATALIE: “Joe, it does say your bid is irrevocable, and that’s contrary to state law, in particular the UCC 2-328 (3).”

    JOE: “Maybe they’re saying I can agree to terms contrary to state law? Can I do that?”

    NATALIE: “It would help their court case that you agreed to the terms, but it would almost assuredly not hold-up in court.”

    JOE: “But that’s what they’re saying … All bids submitted are final and irrevocable, whether they are submitted in person, online or by proxy.”

As Natalie suggested to Joe, terms and conditions cannot generally override state law. We wrote about that here:

Natalie correctly references state law in every state in the United States (Louisiana by practice, rather than expression) that the UCC 2-328 (3) 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In an auction without reserve, after the auctioneer calls for bids on an article or lot, that article or lot cannot be withdrawn unless no bid is made within a reasonable time. In either case a bidder may retract his bid until the auctioneer’s announcement of completion of the sale, but a bidder’s retraction does not revive any previous bid.

This legal treatise has a long history, becoming law in the United States in 1906 via the Uniform Sales Act and prior to that was English law due to the famous English case Payne v Cave (1789) 3 TR 148.

Further, this concept is founded in basic contract law. Bids are offers, which until accepted (without contingency) can be withdrawn, and once accepted (without contingency) cannot be withdrawn.

In fact, the offer itself contains the contingency of the auctioneer accepting a higher offer or seller withdrawal, on it’s face. Additionally, offers are not typically dictated by the offeree, but rather the offeror. When an offeree changes the offer, it becomes a new offer to the original offeror — subject to new offeree’s acceptance.

Therefore as any bidder registers for an auction — live or online — in the United States, their bid is revocable until the fall of the hammer (announcement of “Sold!”)

Any terms and conditions to the contrary are just that — contrary to law.

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.