7 minute read
Bidder Terms
Bidder Terms To Meet The Needs Of Your Seller & You
In a previous issue I wrote about the agreements auctioneers have with our clients (sellers). Most of us know how important it is to memorialize our agreement with our clients in writing in the form of an agreement or “contract”. Written contracts are required in many cases as a written document ensures that all parties to the agreement know exactly what the agreement consists of. This written contract can be referred to if questions come up about who is supposed to do what. It can be used to make the parties to the agreement perform as they said they would. In the event of a disagreement, the written contract can be used in a legal proceeding to show what the parties truly agreed to.
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We need to remember that we also have an agreement with our customers (bidders). Many auctioneers have for years used verbal “Terms and Conditions of the Auction” that they would announce before the auction event started. Some still do this today. While this method is legal, it leaves the auctioneer and seller open to complaints from bidders who may claim to not have heard them, failed to understand them or where not in attendance when the announcements were made.
Others may use written Terms and Conditions that are placed on display or printed on the bidder registration form for each buyer to agree to. In my opinion, this is a better method than the verbal method. As more and more auctioneers implement remote bidding, typically bidding over the internet, what we include in our Terms and Conditions changes and grows. I would argue a good, well thought out set of written Terms and Conditions written by or at least approved by your attorney is imperative for any auctioneer selling over the internet to use.
A good set of written terms and conditions should lay out the obligations and responsibilities of the auctioneer, the seller, and the buyer. A good set of written terms and conditions can protect the seller and the auctioneer. A good set of written terms and conditions can be used to stop a potential lawsuit when shared with a complaining party’s legal counsel. A good set of written terms and conditions can be used to educate a judge or jury on the agreements and obligations of the parties if a disagreement ends up in a court room. The goal of any contract should be to keep you and your seller out of court. No one wins when you end up in court. Voltaire said, “I was never ruined but twice: once when I lost a lawsuit, and once when I won one.” Below are some things to consider including in your written bidder Terms and Conditions. • Do you have something about them agreeing to be bound to all the written AND announced terms of sale simply by attending whether they sign or not? You should. As well, be careful, you do not say something during a live auction or in an item description that would invalidate a part of your written terms. • Do you have a statement that other specific terms may apply to particular lots (like removal times or rules) and where those terms will be? • Are you delivering good title to the buyer free from liens and encumbrances? • Is the merchandise being sold "AS-IS
WHERE-IS" with no warranties express or implied? • Do you offer an inspection? Are prospective buyers expected to inspect before bidding?
Do they waive the right to complain if they fail to inspect? • Is there a buyer’s premium, sales tax or other fee or expense charged in addition to the bid price on an item? • When is an item declared sold by the auctioneer? If it is online bidding only, is the item sold when the timer ends or at some other point in time? • When is payment required and in what forms may buyers pay with? What happens if they do not pay? Do they agree to not initiate a chargeback on a credit card charge? What may you do to collect bad checks or unpaid balances? • What remedy does the buyer have if you make a mistake or misrepresent an item? Is your liability limited to a refund of the purchase price? • If you sell items by quantity what happens if the advertised count is incorrect? • Under the UCC and case law, auctions are typically assumed to be with reserve. May the seller, the auctioneer or an agent bid on behalf of reserves? • Under the UCC and case law bids placed are typically revokable until the item is declared sold. Do you want to do anything to change this? • Under the UCC and case law title to the property typically passes at “the fall of the hammer”. Is there a better time to transfer title?
Bidder Terms...
• Will you provide emission tests, condition reports or anything else on vehicles or equipment? Do you stand behind these if you do? • If you sell firearms or other regulated items what specials rules are there for these items? • If you are offering internet bidding, do you guarantee it will work properly? May you change ending times, lot numbers, descriptions, or anything else? May you delete items after they have bids? What happens if a bidder’s bid is not acknowledged by the software or the auctioneer? • Are bidding increments preset? May they be changed? • What are the rules for removal of the merchandise? Do you offer shipping or to help with shipping? • Do bidders agree they are responsible for any damage they may cause to auction merchandise or the auction premises? Do they agree to indemnify the seller and auctioneer against injuries caused to them by auction merchandise or attending the auction or removal? • If a disagreement arises, do you require arbitration or mediation? Where will any disputes be heard? Many auctioneers specify a court in their home county. I encourage all auctioneers to use written Terms and Conditions for each auction. If you currently do, I encourage you to review them and see if they cover things that may occur in your business. Nothing in this article is or should be construed to be legal advice. Seek competent legal advice from someone licensed to practice to law where you live. Copyright © 2022 David P. Whitley All Rights Reserved.
Halie Behr, Emcee @ 2022 World Automobile Auctioneers Championship
Dean Gunter, Wes and Chad Lamb @ the 2022 World Automobile Auctioneers Championship
Deadline Submission: January 1, 2023
Personal and Confidential to the CAA Hall Of Fame Name of Nominee _____________________________________________
City _________________________ State ________ Zip _______________
Hall Of Fame Guidelines
I. Qualifications that weigh heavily in the selection include the contributions made by the Auctioneer to the Colorado Auctioneers Association, Inc. and if possible, the NAA. The honoree needs to have had an active interest in CAA, Inc. for ten years or more. Have they been an officer or a member of the Board of Directors; have they been on various committees; have they attended seminars and conventions; have they been a speaker or a member of a panel discussion at the conventions or seminars.
II. The second area looked at closely is their auction business. It doesn’t make any difference as to the size of their auctions, the area that they encompass or the type of auctions or variety they may conduct. What is important is that they have been an active Acutioneer for more than ten years, and their professionalism, integrity and high standards have made them an auction leader in their area.
III. A third area that adds some weight is the individual’s contribution to their community. Have they been active in community projects, civic organizations, elective office or any other community area?
IV. Nominations will not be accepted from the nominee’s spouse or immediate family.
BUSINESS INFORMATION
Number of Associates or Partners in Business _______________________
Spouse’s Name _______________________________________________ Does spouse participate in the auction profession: Yes No (circle one)
Children (Please give names and ages): _____________________________
THIS FORM IS PERSONAL AND CONFIDENTIONAL BETWEEN THE HALL OF FAME AND THE SUBMITTER. THE NOMINEE SHOULD NOT BE INFORMED OF THIS SUBMISSION.
Send To:
Lloyd Michael 704 Sycamore St Julesburg, CO 80737 auctions@kci.net GENERAL PROFESSION INFORMATION
How long has the nominee been associated in the auction business: ______ What percentage of the nominee’s time is actively spent in the auction business:
____________________________________________________________ Has the nominee specialized in any particular field of auctioneering:
