Our study today involves this question:
“Did the seller (client) hire that specific auctioneer, and would that principal be okay with some other auctioneer (the deceased auctioneer’s son, for example) conducting the auction?”
Lacking some LLC or corporation structure on the agent’s side (as we discussed here: https://mikebrandlyauctioneer.wordpress.com/2013/05/13/auction-is-scheduled-and-then/,) what would allow a son (or someone else) to go ahead and conduct this auction?
Personal service contracts can have provisions in them which state that the auction will be conducted by a particular auctioneer “and/or other auctioneers at the contract auctioneer’s discretion” which might allow the son to conduct the auction.
However, if a seller isn’t content with such an arrangement — even if this is spelled out in the contract — he or she might have a case to terminate such arrangement and/or the auction.
Contracts with an agent acting as a sole proprietorship are “personal service” in nature. As such, sellers may expect and deserve the service of the particular auctioneer they hired.
Would a Major League Baseball team be comfortable with their shortstop substituting his next door neighbor to play Friday night as their star player is unavailable? I doubt it.
In such situations, it is prudent for the auctioneer to have already discussed with the client the possibility of another auctioneer substituting that day, as well as following-up with any remaining marketing, setup, accounting and settlement.
And this discussion might name the other auctioneer(s) who might be substituting … giving the client more full disclosure as to the personal service being provided here.
This type of disclosure in the contract might rise to language including an “assignment” clause (assigning the auction to another auctioneer, leaving the original auctioneer secondarily liable) or a “novation” clause which would essentially be an entirely new contract.
If an auction is scheduled with an agreement between a sole-proprietorship auctioneer and a seller, and that auctioneer dies (or is unavailable) it is imperative that contract contain provisions how the forthcoming auction will be managed.
Otherwise, lacking stipulations in the contract which deal with this type of circumstance, upon the death of the auctioneer, the auction contract would almost assuredly be void, allowing for the any number of bilateral solutions thereafter.
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, Real Estate Showcase and Goodwill Columbus Car Auction. He serves as Distinguished Faculty at Hondros College of Business, Executive Director of The Ohio Auction School and Faculty at the Certified Auctioneers Institute held at Indiana University.