We really don’t have to wonder, do we? For example, an auctioneer posts online auction terms and conditions (terms), and people click “agree to terms” and then the terms change subsequently. Or, a live auctioneer announces or publishes the terms, and bidders register, and then terms change subsequently.
In either or both of these cases, are the bidders held to these new terms? Likely not. A ruling out of California, Sifuentes v. Dropbox, Inc., 20-cv-07908-HSG (N.D. Cal. Jun. 29, 2022) ruled that Sifuentes was not held to terms he agreed to with a click when Dropbox thereafter changed them and demanded he was held to the new terms.
We’re privy to an auctioneer registering bidders, and then changing the terms, and a bidder subsequently argued he was not held to the new terms. Further, since there were new terms, in this case, the old terms (no longer being used for the auction) were ruled void.
Could an auctioneer put in his terms that bidders agree to the current terms, and any subsequent new terms? It’s doubtful unless bidders were advised of any changes and had an opportunity to retract their bids and/or not participate. If the changes were minor or affected only certain bidders, possibly bidders with “essentially” the same terms could be held thereafter regardless.
For example, a bidder is paying with a credit card but a check is an option. The terms change from “personal” check to “cashier’s” check. These terms may remain enforceable on the credit card buyer, but not binding upon the buyers writing [personal] checks.
Incidentally, bidders can indeed retract their bids regardless of a change in the terms, lacking — at a minimum — some sort of consideration for their being bound, as we’ll discuss in an upcoming treatise on this issue. Otherwise, there is a general principle that terms and conditions cannot counter state law — or we would ask what holding does any state law [regarding auction practice] have?
Of course, the Uniform Commercial Code (UCC) can be modified as you’ve repeatedly been told, so long as such modifications don’t amount to any manifestly unreasonable new terms as you are rarely told: https://mikebrandlyauctioneer.wordpress.com/2022/03/10/only-the-first-sentence-of-%c2%a7-1-302/.
In summary, it would seem auctioneers should do one of two things: (1) once you start registering bidders, don’t change the terms, or (2) if the terms change after bidders have already registered under old terms, you need to be sure these bidders have knowledge of — and consent to — these new manifestly reasonable terms.
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 has served as faculty at the Certified Auctioneers Institute held at Indiana University and is approved by The Supreme Court of Ohio for attorney education.