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We started a auction-related blog in 2009. The blog has focused on auction law, customary practice and related topics concerning auctioneers around the United States.
Shortly thereafter our first blog, fellow blogger extraordinaire and good friend Aaron Traffas wrote about our undertaking: http://www.auctioneertech.com/2009/mike-brandly-launches-blog-with-auction-law-focus/
In the last two or so years, we have increasingly used terms including, “unfair,” “unreasonable,” “inequitable,” “unconscionable,” “adhesionary,” etc. Given that all these terms are not in ordinary language for everyone, today we define those and other terms with the assistance of Black’s Law Dictionary, Eighth Edition, Bryan A. Garner, Editor in Chief, ISBN 0-314-15199-0, Copyright 2004.
Contracts. A type of undue influence in which a stronger party achieves a result by means that seriously impair the weaker party’s free and competent exercise of judgement. Unfair persuasion is a lesser form of undue influence than duress and misrepresentation. The two primary factors to be considered are the unavailability of independent advice and the susceptibility of the person persuaded.
1. Not guided by reason; irrational or capricious. 2. Not supported by a valid exception to the warrant requirement. .
Not fair; opposed to principles of equity .
1. (Of a person) having no conscience; unscrupulous . 2. (of an act or transaction) showing no regard for conscience; affronting to the sense of justice, decency, or reasonableness .
Adhesionary [contract] *
A standard-form contract prepared by one party, to be signed by the party in the weaker position, usu. a consumer, who adheres to the contract with little choice about the terms.
We put an [*] following Black’s definition of adhesionary [contracts] to note that in contemporary language, any agreement or terms/conditions can be deemed “adhesionary” when having traits of terribly onesidedness often (but not always) resulting from the stronger party’s drafting along with the weaker party’s adherence.
One might rightly ask, “Why all this about these particular terms?” “What does this have to do with the auction industry?” The answer to both these questions is essentially that auctioneer’s contracts and terms & conditions have in the last 20 or so years (and particularly in the last 2-3 years) become more unfair, unreasonable, inequitable … and the trend seems to be continuing to this day.
My submission here is when taking a look at your seller contract, registration requirements and suggested purchase/sale contracts, that the more these particular terms (words) come to mind, the more reason you have to possibly alter those documents.
I spent my lunch will a well-known contract law attorney the other day. He graciously allowed me to quote him about this topic here:
If the argument you’re hearing is that you need all these additional terms and conditions in all your paperwork to help you in court — I might counter that all that additional paperwork is what might get you in court in the first place, or worse yet put you in an even more precarious position.
If you wish to read more about “unconscionable” auction terms from a legal standpoint, here Western State University College of Law Emerita Law Professor Edith R. Warkentine wrote about her perspective: http://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1056&context=sulr; our complete analysis is here: https://mikebrandlyauctioneer.wordpress.com/2017/03/21/unconscionable-auction-terms/
My caution as we enter the prime state auctioneer convention season here in early 2018: When you hear that you need to in essence memorialize the definition of the word “definition” in your current 23 pages — in order to make them more one-sided and more like 37 pages think how you would feel being asked to sign or acknowledge that same agreement.
We were just retained in our 18th auction-related case with claims in excess of $1 million dollars (our site concerning those services is here: https://auctionlegalconsulting.com/); as such it is becoming increasingly clear that less is more. Given more text, more paragraphs, more definitions, more clauses, more pages, it just gives the other side more to survey to find an issue — and they almost always do.
Lastly, another reason we suggest this possible review of all this paperwork is simple — consumers have choices and when selling and/or buying at auction becomes too unfair, unreasonable, inequitable and the like, they will choose [and already have chosen] to buy and sell elsewhere.
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, an Instructor at the National Auctioneers Association’s Designation Academy and Faculty at the Certified Auctioneers Institute held at Indiana University.