adhesionary, agreement, auction, Auction Law, auctioneer, auctioneers, auctions, bid calling, bidder, buyer, Charles A. Sullivan, contract, court, judge, seller, terms and conditions, UCC 2-328, unenforceable
In contrast, we work in an environment of “customary practice” more than anything else. What we do — how we operate — our procedures — are generally viewed as acceptable if, “everyone else is doing it.”
This is proven every day as the public largely considers any auctioneer’s policies or procedures to be reasonable because they’ve seen them before at other auctions.
And furthering this theory, how do most auctioneers operate? As they always have, or how their father operated, grandfather operated … we wrote about that here: https://mikebrandlyauctioneer.wordpress.com/2014/08/07/weve-always-done-it-this-way/
What’s concerning is this auction environment has existed for centuries and we’ve even got in the habit of saying, “Auctions Work.” But somewhat recently we’re starting to see that anything goes … even 2 equals 1 if we say it does.
Most notably, we’ve seen two troubling trends recently:
- Terms which say the auctioneer can say anything, and bidders are to “not rely” on any of those words — as such be advised, “I can (and will) lie to you,” and you have no recourse. We wrote about that here: https://mikebrandlyauctioneer.wordpress.com/2015/10/23/you-cant-believe-anything-i-tell-you/.
- Terms which can otherwise say anything … “I can reopen the bid any time I want, you can’t retract your bid, I have the right to demand arbitrary bid increments, ignore bids, cancel bids … basically I can do whatever I want and you can’t do anything about it.”
What’s maybe even more fascinating, if you as a bidder can’t believe anything that’s said, are any of the auctioneer’s other terms and conditions reliable? Who knows?
Can the “bidder’s environment” be all one-sided, auctioneer/seller favorable? Can an auction be all about the seller and auctioneer, making the bidders/buyers essentially second class citizens?
I worry this trend might further alienate the public; if we as auctioneers keep making it harder, more difficult, more unfair, more confusing, more adhesionary to participate in an auction, will the public start to shop elsewhere?
Maybe they already have? We noted that “Ashley” was considering an auction but ultimately found what she wanted/needed in the retail environment: https://mikebrandlyauctioneer.wordpress.com/2015/01/19/should-she-buy-at-auction/
Auction terms and conditions in the 1930’s would fit on a postcard, if they existed at all. In the 1980’s terms and condition started to require a full sheet of paper (8.5″x11″) and now it’s not unusual to see dozens of paragraphs, even dozens of pages.
I recently heard an auctioneer tell me his clause on “venue” was on page 19 of his terms and conditions. “Really? You have 19 pages of buyer terms and conditions? Nope, I have 23.”
And auctions are hardly the only industry seeing this trend. I think I just signed up for something online, and clicked, “I agree” to maybe 2,500 words of terms and conditions — which I didn’t bother to read because of course, they are non-negotiable and I wanted access.
For those unfamiliar with unenforceability and/or adhesionary contracts, Seton Hall Law Professor Charles A. Sullivan wrote this treatise on “Unenforceable” (adhesionary in some cases) contracts. http://moritzlaw.osu.edu/students/groups/oslj/files/2012/03/70.5.Sullivan.pdf. From the title, “The Puzzling Persistence of Unenforceable Contract Terms” you might correctly guess he’s not a fan.
Certainly auctions require sellers. However, even with a seller, auctions require bidders — buyers. And as auctioneers, lest we forget that if we make our auctions so seller-favorable (so buyer-unfavorable) that we might not have that next auction. Said another way, is an extremely seller-favorable auction all that seller-favorable?
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, RES Auction Services 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.