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Bidders don’t read. Bidders don’t understand. Bidders ignore what we tell them. Yet, we auctioneers write our own terms and conditions counter to state law, and submit that “we” have agreed otherwise. Agreed? Agreed with who? Is this so-called agreement with a bidder who doesn’t read, nor understands, and ignores what you tell him?

Yes, people can be held to contracts and other agreements which they sign, even [maybe] if they don’t understand what they just signed. We noted as such here: https://mikebrandlyauctioneer.wordpress.com/2020/12/24/can-auction-bidders-be-held-to-things-they-dont-read/. They have agreed to an agreement (contract) but do they really agree?

Are we using the term agree to mean “consent to do something that has been suggested by another person.” or are we using it to mean “have the same opinion about something or to concur?” We seem to be agreeing, but not truly agreeing at the same time?

If a bidder agrees (by checking the box) but doesn’t concur or have the same opinion, is that an agreement? In other words, could a 43-year-old bidder hold he had no practical notice (understanding) of your terms and conditions but at minimum has had constructive notice of state law (for example) for 25 years?

We’re currently engaged in an interesting auction-related case where a bidder agreed to the terms and conditions but didn’t really agree at all — as in he didn’t concur, nor have the same opinion. It looks like this case is headed to court where a judge might make a decision worth sharing with you.

We’ve written about this issue before including here where we compared and contrasted the UCC § 1-302 and the UCC § 2-328: https://mikebrandlyauctioneer.wordpress.com/2015/12/01/ucc-2-328-ucc-1-302/. Interestingly, auctioneers are told to disclaim good faith, diligence, reasonableness, and care all the time yet those cannot (by law) be disclaimed by agreement — even if “agreement” means in fact “having the same opinion.”

If you think you as an auctioneer can hold bidders to something other than the UCC § 2-328 because people are generally held to terms otherwise in commerce all the time — the difference may be two-fold: There is, in essence, a default law which your terms might counter by agreement, and any such modifications cannot be in bad faith, negligent, unreasonable nor careless. https://mikebrandlyauctioneer.wordpress.com/2021/04/22/good-faith-diligence-reasonableness-and-care/.

Most other commerce has terms and conditions, but there’s not necessarily a default position nor a known counter to customary practice. Wouldn’t a bidder expect what is customarily done over what he has [not] agreed to otherwise? Relatedly, we call your attention to this passage:

The parties, by agreement, may determine the standards by which the performance of those obligations is to be measured if those standards are not manifestly unreasonable.

The above quote doesn’t use the word, “contract” and rather “agreement” commensurate with how such arrangements normally work — where there is a mutual assent or a “meeting of the minds” — that, of course, contracts require as well; the drafters didn’t say one party (the bidder) acquiesces to the other party’s (auctioneer’s) demands.

Interestingly, the attorneys in our above case and I are concentrating on the words “parties,” “by agreement,” “may determine” and “obligations” and largely concluding that agreeing is not merely unilateral, but bilateral in nature as the parties (plural) by agreement … [both] determine.

We would suggest it’s far easier to defend your position as an auctioneer by using the longstanding constructive notice of UCC § 2-328 than anything you have in mind as a counter-argument, which you will then have to claim your non-reading, non-understanding, neglectful bidders agreed to …

Finally, how many times do we see terms and conditions which are obviously manifestly unreasonable? A staggering number of attorneys we work with find many auction terms and conditions so preposterous they pursue damages based upon the likelihood their client’s circumstances will “shock the conscience of the court.”

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.