As one who teaches classes to auctioneers all over the United States, one thing stands out: Many auctioneers are looking for the “one simple thing” they can remember.
So, when a presenter says, “You can do that, however …” auctioneers generally remember the “You can do that” part. Likewise, when a presenter says, “You don’t have to do that, however …” auctioneers generally remember the “You don’t have to do that” part. The “however …” part? Not so much.
For example, just talking to an auctioneer the other morning about reopening the bid after, “Sold!” and I told him in a certain circumstance (a bid coming in while the hammer is falling) that he could reopen the bid, however it was unwise to do so. His reply? “So I can reopen the bid?”
Likewise, I was speaking to another auctioneer about a week ago and told him that his auction didn’t strictly necessitate a “commercially reasonable” auction plan, however, it would be prudent to adhere to a commercially reasonable standard. His reply? “So, I don’t have to worry about commercially reasonable standards?”
I teach real estate law (Hondros College) and just Tuesday helped the class through Ohio’s Chapter 4735.18. #1 in that treatise says that real estate licensees can’t knowingly misrepresent. One of the 127 students replied, “But you can knowingly misrepresent so long as you don’t get caught, right?”
My reply to this student was “Yes, however, it’s best to not knowingly misrepresent as there’s [largely unnecessary] risk in such behavior.” His next thought? “Okay, could one assign or disclaim that risk, with any verbiage?” My response? “There’s risk in assigning and/or disclaiming risk.”
I fully expect him to be a less-than-stellar student enrolled in auction school shortly, and once I’m hired as an expert witness to either help him out of trouble or by the other side to help him understand he should behave better, he might finally understand.
Our theme today — as you might have guessed — is just because you can doesn’t mean you should, and just because you don’t have to doesn’t mean you shouldn’t. Said another way, the “however” is sometimes the most important part of any legal principle, so it’s important to hear the entire thought.
However, (here’s an important part …) it’s not entirely up to the attendees to hear the “however,” and rather the responsibility of any presenter to express it. If the entire principle isn’t expressed, you can’t possibly [immediately] consider it. Likewise, too often the theme has been “How to win in court” rather than “How to avoid court altogether.”
This win-in-court misnomer is furthered complicated by nobody knowing if their case will be supported by any particular court. Any court, any judge, any jury … or maybe best expressed as a sports analogy, as Chris Cameron famously said “On any given Sunday, any team in the NFL can beat any other team.”
We’ve been hired in more than one auction case where the contract and bidder terms are filled with paragraph after paragraph of assignments and disclaimers, with the most recent resulting in a rather material lawsuit where the buyer — and seller — are both crying foul.
My prediction? Hard to be sure, but I suspect this subject court will have a dim view of the auctioneer attempting to not be responsible for anything he said, printed, announced, and otherwise held as true, despite us being hired to advocate for the enforceability of his policies.
However, this auctioneer and his attorney might prevail — not avoiding court altogether, but winning in court, because it’s hard to forecast — as on any given Sunday, as they say …
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.