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I’ve often said state and federal legislatures don’t do a very good job legislating. Laws are written and/or adopted and then enacted, leaving out important clarification, not addressing the entire problem — or worse yet — some of these laws are just plain nonsensical.

For example recently (in brief,) the Minnesota Supreme Court ruled (6-0) that a defendant was not guilty of criminal sexual conduct because the victim drank voluntarily prior to the contact. Minnesota law [at that moment] said the intoxicant must be administered involuntarily for the defendant to be held to have misbehaved.

Justice Paul Thissen wrote in part, “We apply [the Legislature’s intended meaning] and not what we may wish the law was or what we think the law should be.” Many consider that the proper role of courts, although some judicial bodies (including the Supreme Court of the United States) regularly apply a more discretionary view.

As we’ve repeatedly noted, we’ve seen a dangerous trend lately to empower the auctioneer with absolute discretion. While some consider that good news for our industry, as more cases end up in front of judges and juries, it appears almost certain at some point, these actions will be ruled upon.

A certain court could rule in a more texual manner, while another court could rule in a more discretionary fashion. And while auctioneers argue they should have absolute discretion, they typically oppose anyone else having any discretionary powers at all — including courts.

Here’s what many auctioneers are doing (and/or worse yet being told to do) where I think we can and should do better:

  • Selling something “as-is” but not allowing a prospective buyer to inspect to see what “it is.”
  • Saying, “Sold!” but reopening the bid — even much later — unlike almost any other contractual arrangement.
  • Misrepresenting property under the guise of “you can’t rely on anything we say.”
  • Advertising one way, but changing the auction last-second citing our “Announcements made day of sale …”
  • Feeling no obligation whatsoever to check for any latent property issues coupled with denying pre-auction inspection.
  • Taking fictitious bids while citing they are bids placed on behalf of the seller, only to retract those bids and “backing up” to prior genuine bidders.
  • Not selling in a “commercially reasonable” fashion noting you aren’t required to do so.

As a frequent expert witness, I can tell you that you might well get away with doing any (or almost all) of these things as the law is written — or you might not. The “might not” is when you find yourself in a more liberal (interpretive / discretionary) court where a judge or jury (and/or applicable tort law) dictates that applicable law is unreasonable or unconscionable.

We have more questions: How lucky do you feel? Is it worth the risk? Can you do better? Should you do better? I can assure you of one thing — those auctioneers who’ve been in those aforementioned discretionary courtrooms think they should have done better. In fact, when there’s any auctioneer in any courtroom it’s usually late, but a good time to maybe review policy again.

You might view our defendant in our above Minnesota case as the winner? That’s the misnomer. He wasn’t convicted, but he didn’t win — he lost money, time, reputation, sleep … to say the least. Terrible advice is how to win in court (which you really can’t do) and good advice is to stay out of court. Relatedly, we noted the risk in assigning risk: https://mikebrandlyauctioneer.wordpress.com/2018/10/24/possible-risk-with-assigning-risk/.

God forbid you attend an auction seminar and hear recommendations you are free to sexually assault other people in Minnesota as long as the other party voluntarily consumes the alcohol — because it’s legal there … how’s this any different than our theme today? Can you sexually assault other people in certain circumstances? Should you?

Here’s two rules we suggest you keep in mind: Just because you’re told you can, doesn’t mean you should, and just because you’re told you don’t have to, doesn’t mean you shouldn’t. Possibly the best gauge might be to behave in a way you yourself would want to be treated.

Mike Brandly, Auctioneer, CAI, CAS, 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, Executive Director of The Ohio Auction School, and an Instructor at the National Auctioneers Association’s Designation Academy and Western College of Auctioneering. He is faculty at the Certified Auctioneers Institute held at Indiana University and is approved by The Supreme Court of Ohio for attorney education.