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  • Writer's pictureMike Brandly, Auctioneer

Auctioneers and “the” law versus “that” law

Stanley Forman Reed — without a law degree — serving as Associate Justice of the Supreme Court of the United States, 1938 – 1957

Our subject today is law. Law is discussed all over the world every minute of every day by lawyers and non-lawyers alike. So, what is law? A somewhat common definition goes something like this:

A system of rules that are created and enforced through social or governmental institutions to regulate behavior.

We note this definition says, “a system of rules” and thus our subject today: Is it “the law” or “that law?” For auctioneers, it’s much more important to consider “the” rather than “that.”

For instance, as many auctioneers drive to auction events every day, there are posted speed limit signs … 70 MPH, for example. So, apparently there is a law that says drivers can drive up to 70 miles per hour.

However, there is another law that says if an emergency vehicle or peace officer is along the road, or wishing to pass — drivers must slow down — presumably to speeds less than the posted speed limit.

Could a driver who didn’t slow down say, “There’s this [that] law that says I can drive 70” and an officer say in response, “Yes, and there’s this other law that says you have to slow down?” Indeed. In other words, these two [that] laws combine to denote the law.

It’s the “system” of laws, rules, court decisions and the like and not often just one particular law in isolation. We cited another material example of this regarding the regulation of firearms here:

In respect to the Second Amendment, many cite this [that] law which says: ” …the right of the people to keep and bear Arms, shall not be infringed” and yet there are two major Supreme Court of the United States cases and a myriad of other laws which infringe this right. While that law is the Second Amendment, the law is a assemblage of both the Second Amendment and related laws which modify it.

Currently, the jurisdictions of California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, Maryland, Massachusetts, Michigan, Nebraska, Nevada, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont and Washington most notably impair your right to keep and bear. Yet, you say your right to keep and bear can’t be infringed?

Yet another common auctioneer-related misconception is that the UCC 2-328 can be unlimitedly modified by the UCC 1-302 by citing that law which says, “ … the effect of provisions of [the Uniform Commercial Code] may be varied by agreement.” (UCC 1-302 (a)) purposely ignoring another law which says that good faith, diligence, reasonableness, and care prescribed by [the Uniform Commercial Code] may not be disclaimed by agreement.

I wrote only a short time ago that seller bidding could be considered shill bidding in certain circumstances. Some cited that the UCC 2-328 provides for seller bidding with adequate disclosure — and suggested that this was the end of story based upon that law. Our analysis is here:

So, we have that law that says sellers can bid, but other laws which put some seller bidding in the category of disingenuous and placed to advocate and entice other bids and/or bidders. In other words, we have two [that] laws (and others) which combine to make up the law on this subject.

What’s the lesson here? As many of us — to varying degrees — study legal topics attempting to interpret certain statutes and opinions, there is certainly that law, or that law, or that other law, but the law is a much more complex, comprehensive and important subject.

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, an Instructor at the National Auctioneers Association’s Designation Academy and America’s Auction Academy. He is faculty at the Certified Auctioneers Institute held at Indiana University and is approved by the The Supreme Court of Ohio for attorney education.

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