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You’ve been exercising, eating right, and getting enough sleep. Imagine I want to get your attention. If I publish an article saying, “You should exercise, eat right and get enough sleep” you don’t even notice. If, rather, I write “You should not exercise, eat whatever you want, and sleep no more than 3 hours a night” you do notice.

In fact, you do more than notice. You read the article and if it gives you more freedom — more privilege — and you deem it from a reliable source, you start to exercise less, eat more recklessly and sleep 3 hours a night … not immediately creating a problem, but eventually leading to other issues.

Auction law, customary practice, industry standards, and commercially reasonableness have remained (in theory) mostly constant for decades. However, about five years ago, a bunch of new seductive advice started to appear and some auctioneers of course took note.

For instance, this new advice told that the bid can be reopened at will, bidders can be registered capriciously and arbitrarily and you can disclaim and assign all your responsibilities including disregarding the health and safety of your bidders.

Further, we have been introduced to “missed bids,” “late bids,” “tie bids,” “mistaken bids,” “disputed bids,” and “lucky bids.” Subsequent to this show, it was clear there were none of these six things (outside of Kentucky) existing in reality. We wrote about such before here: https://mikebrandlyauctioneer.wordpress.com/2020/10/07/disputed-missed-late-and-tie-bids/.

Much of this new advice stems from a concentration on the UCC § 2-328 (Sale by Auction) in that it is being suggested it is prudent and correct to modify, change, alter and in some cases completely ignore all of it.

We’ve asked the question, “When has this actual code itself — as it is — (outside of reopening the bid) been a bad idea?” https://mikebrandlyauctioneer.wordpress.com/2018/08/01/when-has-the-ucc-2-328-been-a-bad-idea/. We’ll continue to wait for the details of that case to be publicized … and of course, if there is a lawsuit, that’s prima facie bad news.

Maybe most concerning, this advice has led many auctioneers to mistakenly believe they aren’t responsible for anything and can lie, misrepresent, breach promises, and violate tort law because their disclaimers and assignments have provided them absolute immunity.

On the contrary, we have endeavored to write (and lecture) on these issues including that you can only reopen the bid (but shouldn’t) in one particular circumstance (and there are no missed, late, mistaken, disputed bids and/or lucky bids to worry about,) that bidders have to be treated equitably (to the same pre-auction terms, other than price,) and bidders deserve a reasonably safe bidding environment including at least some protection from a pandemic.

We’ve written both about this mistaken sense of complete immunity: https://mikebrandlyauctioneer.wordpress.com/2020/06/09/auctioneer-immunity/ and the unfortunate results of this bad advice here: https://mikebrandlyauctioneer.wordpress.com/2021/02/17/are-auctioneers-intentionally-misleading-buyers/.

In no more stark difference of opinion, we’ve consistently held that it’s better to stay out of court than win in court (and certainly better than losing in court) https://mikebrandlyauctioneer.wordpress.com/2018/07/26/auctioneers-you-want-win-in-court-or-stay-out-of-court/.

We saw a quote that fairly encompasses our message today:

No greater mistake can be made than to imagine that what has been written latest is always the more correct; that what is written later on is an improvement on what was written previously; and that every change means progress.

Arthur Schopenhauer (1788-1860)

There will always be that new message, that new story, that new viewpoint but we continue to suggest a very skeptical, reasoned reception is appropriate given, as Dr. Schopenhauer said, not every change means progress obviously suggesting it’s not necessarily correct because it’s the latest written.

Lastly, it’s up to you how you run your business and how complex or simple you endeavor it to be for people to do business with you. It seems to us nobody is seeking more confusing, difficult, one-sided relationships and I only hope we’ve helped you consider these important issues.

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, Brandly Real Estate & Auction, 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.