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roulette-1253622_1920We as auctioneers hear it over and over again it seems.

“I hired an auctioneer and things didn’t go right … so what can I do? I don’t have a written contract.”

Our first question might be, “Why did you expect things to go right, since none of those things were written down?” “Did you really expect to get paid?” What exactly did you expect?”

Legally, since the auction took place, instead of a written contract, we probably have an oral or implied contract. Oral contracts lack writing, and implied contracts rely on actions and/or behavior rather than words.

However, both oral contracts and implied contracts are based upon an understanding (or lack of understanding) which isn’t memorialized, and therefore is subject to interpretation of the parties.

What recourse does a seller have if he feels harmed by an auctioneer, lacking a written contract? Some states require auctioneers to enter into written contracts and therefore the state licensing agency may be able to assist. Otherwise, the court system is likely the only other venue which could help a principal.

Courts, however, look for evidence — and should in fact require it. If a seller says that an auctioneer conducted an auction for him, he should have to provide evidence supporting those alleged facts: Pictures, video, witnesses, copies of advertising, notes, recollections …

This type of evidence shouldn’t be hard to find if the auctioneer acted prudently — there should have been advertising, notes, pictures, video … and of course a written contract which is apparently missing for some reason.

Additionally, if the auction involved substantial assets, and especially real property, other recourse is available to a seller. First, for real property, the seller could reach out to the state Attorney General’s office who may have jurisdiction and motivation due to the enhanced value of the subject property. Further, real property transfers generally require a written deed.

Lastly, a seller lacking a written contract who is damaged would be advised to contact an attorney to help with prudent next steps. It could be a letter or lawsuit would be enough to prompt the auctioneer to make things right — that is if the auctioneer feels the seller is due some redress.

Of course, without a written contract, it’s not necessarily the seller who is in the driver’s seat. Could an auctioneer perform (otherwise) perfectly? Might a seller think, “Well, since I don’t have a written contract, I’ll be able to allege damages … even if I’m not due any restitution?” Maybe.

Sellers should demand a written contract in all cases when hiring an auctioneer and auctioneers should demand a written contract in all cases when engaging a seller; neither should make the bet that all will just work out fine. “What to do since there’s no written contract?” shouldn’t be a question we auctioneers hear in the United States.

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.