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Auctioneers like having a lot of discretion. Steve Proffitt held auctioneers should have little or no discretion and I tend to agree: https://mikebrandlyauctioneer.wordpress.com/2021/10/25/steve-proffitt-discretion/.

Relatedly, I’ve been somewhat a connoisseur of terms and conditions which defy reasonableness. We’ve published several here on this platform and found this one below the other day:

The auctioneer has the sole discretion to advance the bidding and may reject a nominal advance, should it in his estimation prove injurious to the auction. The auctioneer shall be the final judge in all bidding disputes and shall name a bidder as the purchaser.

If the auctioneer:

  1. Has sole discretion to “advance the bidding,” I assume that means he can accept or reject any bid?
  2. Can reject any bid which is a “nominal advance” then I assume he can veto any higher bid, regardless?
  3. Shall be the “final judge” in all bidding disputes, he can have any policy for resolving them?
  4. Shall “name a bidder as the purchaser” then any bidder can be such?

I would suspect this isn’t a without reserve (absolute) auction? Even if it’s a with reserve auction, these terms and conditions seem not governed by or acting according to reason — and as such unreasonable and/or absurd. It seems clear here there is no obligation to sell to the highest bidder — and in fact, discretion to sell to any bidder …

We wrote about this very concept that it was suggested auctioneers can register anyone, and sell the property to anyone: https://mikebrandlyauctioneer.wordpress.com/2021/12/22/anyone-can-register-and-well-sell-to-anyone/. Unreasonable? Absurd? Indeed.

I’m not sure where auctioneers are getting these unreasonable, adhesionary, unconscionable, inequitable, unfair, absurd auction terms and conditions, but … nonetheless, these are the types of unreasonable, adhesionary, unconscionable, inequitable, unfair, absurd auction terms and conditions I’m privy to courts invalidating.

For further definitions of these concepts, we, unfortunately, had to write about these types of contracts (terms and conditions) here: https://mikebrandlyauctioneer.wordpress.com/2018/01/08/unfair-unreasonable-inequitable-what-does-it-all-mean/.

It could be that 1,000’s of auctioneers have similarly fascinating terms and conditions — and the argument might be that “They can have such.” We would ask, “Should you have such?”, especially if selling materially valuable property: https://mikebrandlyauctioneer.wordpress.com/2022/06/05/auctioneers-should-and-shouldnt/. We would suggest not.

Finally, all one has to do here is think about what the “typical” bidder would expect. It’s an auction, so if I place a higher bid than the current high bid, you accept it? If I bid higher than anyone else, I become the owner? If there’s a bidder “dispute,” I have a right to know how it will be resolved? It seems this auctioneer makes no such guarantees any of this is going to happen.

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.