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  • Writer's pictureMike Brandly, Auctioneer

Expressed or the climate?

One only has to be marginally aware of the political “climate” to note that many feel it’s not the words being specifically expressed, but the rhetoric or the climate itself that is suggesting certain acts are acceptable.

The main difference between the many trying to truly help auctioneers do better, and many others is the former usually provide appropriate context — for example, here’s how to avoid litigation. The latter usually suggests certain actions without context, causing an increased chance of a court appearance.

Maybe the most startling example of this regards UCC § 1-302 (a) which says expressly that ” … the effect of provisions of [the Uniform Commercial Code] may be varied by agreement.” So, can you modify any provision so long as others agree?

This is the ruse. You actually can’t modify any provision solely so long as others agree. UCC § 1-302 (b) says:

The obligations of good faith, diligence, reasonableness, and care prescribed by [the Uniform Commercial Code] may not be disclaimed by agreement. The parties, by agreement, may determine the standards by which the performance of those obligations is to be measured if those standards are not manifestly unreasonable. Whenever [the Uniform Commercial Code] requires an action to be taken within a reasonable time, a time that is not manifestly unreasonable may be fixed by agreement.

Let’s be specific: good faith, diligence, reasonableness, and care can’t be disclaimed. Your “agreement” can’t be manifestly unreasonable. Sound familiar? Hear this when you were being told about the UCC § 1-302? We noted possibly not here: https://mikebrandlyauctioneer.wordpress.com/2022/01/12/alex-lyon-case-and-the-larger-issue/.

Let me assure everyone reading this that courts around the United States consider many issues including good faith, diligence, reasonableness, and care every day. All these words are unfortunately subjective, per a judge or jury’s interpretation.

Take a look at the above sign. Does it say “Don’t walk?” It does. Have you been walking anyway? You have. However, if you walk when it says “Don’t walk” and there’s a problem, could there be undesirable issues? https://mikebrandlyauctioneer.wordpress.com/2021/12/26/auctioneer-has-the-right-to-do-whatever/.

Here’s our prior treatise regarding this particular issue: https://mikebrandlyauctioneer.wordpress.com/2022/04/22/variation-by-agreement-not-uniform/. As we noted in this article:

Remember that you and your attorney’s view of what is reasonable won’t matter. What matters is what your sellers, bidders, buyers, and their attorneys think are reasonable. We as auctioneers need to keep in mind that an unhappy seller, bidder, and buyer can (obviously) turn into a plaintiff — with you as the unfortunate defendant.

I have witnessed countless wild, crazy, wacko, unconscionable modifications (to state law) in auctioneer’s terms and conditions which scream the essence of any definition of “manifestly (obviously) unreasonable.” Bidders seem unaware until the property value reaches a certain point and/or their attorney gets involved.

If you take a look at this platform you can find I’ve shared several of these finds. If your terms and conditions resemble anything close — or are clearly wild, crazy, wacko, or unconscionable — it’s past time to make your terms and conditions far more reasonable.

We’re all working for our sellers/clients. How do these principals benefit? With more bidders who choose to participate in their auction. The better we treat those bidders, the more our current and subsequent sellers benefit https://mikebrandlyauctioneer.wordpress.com/2023/10/20/reasonable-auction-practice/.

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 formerly at 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 Auction 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.

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