I was trying to point out that it's rarely as easy as "take him to small claims court". Even when you have an "open and shut" case; like when I have a client that does not pay a bill for work they ordered and for which they received value, it's very rare that you can get satisfaction in small claims even when you are actually out real $. IME, a contract (written or verbal) for the kind of amounts we are talking about, is rarely worth more than the personal commitment that both parties have to honor it. |
We do this in bankruptcy court auctions from time to time, but the rules are spelled out very clearly in advance, and everyone who qualifies to bid consents to the process. It's a smart way to sell, and is fair as long as everyone knows about it.
Whether it is legal in your state if not disclosed in advance is a matter of local law. |
Swampwalker
I agree that, as a practical matter, there's no use pursuing the auctioneer. I just want to refute the suggestion that, just because you're not out of pocket any money, you don't have legal recourse when someone refuses to sell you an item he agreed to.
It would be more effective to write a letter of complaint to the Better Business Bureau or, if one exists, to a professional association of auctioneers.
Al
Agreed. Very amateurish (or deceptive, depending on your point of view) not to explain out loud to everyone in attendance the unusual ground rules of this auction, before the bidding started. A lot of resentment could have been avoided - evidently the OP wasn't the only disappointed "winning bidder" of an individual piece of equipment. |
What I wonder about all of this is what did the auctioneer say to explain his actions? He had to have said something at some point, it seems to me. For example, when the items were first auctioned individually did he say anything about there being reserve amounts?
Regards,
-- Al |
Look, this is kind of a silly argument but my point is that given the $ limit in small claims (my state is $2500). Even if you "win" by default, then you most likely will have to pay a sheriff or marshal to serve the judgment and then given that they almost certainly will not pay, you have to find the bank where the auctioneer has an account, and pay the sheriff or marshal to seize the $ from the account, assuming that they have not emptied the account and closed down that business entity. Given the limited recovery vs. legal fees to go to "big claims" court, AND the series of facts that you would have to prove, it's extremely unlikely that it would make economic sense to pursue it. Add in the mental energy and hassle and, IMO, it's best to just walk away. Sometimes you just have to say the guy's an unethical jerk and walk away, for your own piece of mind. |
Swampwalker,
A buyer's usual damages when a seller fails to deliver a good for which an enforceable contract exists is the difference between the reasonable cost the buyer incurs acquiring a replacement and the agreed upon contract price. Of course, the buyer has to prove all the necessary elements (existence of a contract, evidence of the contract price, acquisition of a replacement and the reasonableness of the replacement cost), all without the benefit of a written contract, but a damage remedy does exist.
Sometimes a buyer can recover damages for a profit the buyer lost as a result of the seller's default. In this case, the buyer would have to demonstrate that he had the ability to resell the equipment and its likely resale price (Audiogon blue book anyone?)
The fact that the original poster didn't come out of pocket at the auction doesn't affect his right to damages. You don't have to perform your end of a contract when the other party has already defaulted. You just have to be careful not to indicate that your treating the contract as rescinded.
I'm not saying that the OP should have pursued the auctioneer, just that he could have if he wanted to go to the trouble.
One little caveat. As someone else mentioned, the OP may have agreed to the strange way this auction was conducted when he registered. |
"But what are you gonna claim? The auctioneer does not owe Fse any money. Fse did not suffer any $ loss. He lost the opportunity to buy something. The auctioneer no longer has the item so he can't sell it to Fse at any price."
I know that sounds like a reasonable way to look at the situation, but there's more to it than that. In this case, you wouldn't be suing for damages. Its not something like a slip and fall where the person that slipped didn't get hurt and wants to collect something anyway. In Fse's case, he would be suing for breach of contract. He can claim damages at some point as a result of the breach, but the fundamental reason for bringing the suit in the 1st place is different. When Fsc won the auction, the speakers were his contractually. The transfer of ownership of the speakers would be complete on payment. When the auction company sold those speakers to someone else, they sold property that wasn't theirs. And that's the real issue. The auction company sold Fsc's speakers, literally.
Just to clarify and give an example, this is what I would do if this happened to me. I would file a suit in small claims court and I would ask for: The auction company to sell me the speakers at the price I won them for, to ship them to me for free, that they arrive in the same condition they were in when I bought them, $5000, all court fees and liquidated damages if allowable. Once I did this, the auction company would almost certainly settle with me for some type of reasonable amount before this would even go to court. If it did make it to trial most likely the judge would start with speakers and if auction company couldn't produce them, they would go down the list to find some type of settlement that would be fair.
To make a long story short, small claims is a very powerful tool that most people overlook. If anyone is interested, I know I have some books on the subject somewhere. Just post and I'll see if I can find the name's and author. |
Small claims, as far as I understand it, is when Joe says Frank owes him $X for a service or for an item that was delivered but not paid for. Frank says the service was not performed, or the item was not delivered, or the service/item was not as advertised or agreed upon. Since the $ value of the dispute is less than a certain amount, an abbreviated process with a judge deciding the matter based on the facts as described by Joe and Frank. But what are you gonna claim? The auctioneer does not owe Fse any money. Fse did not suffer any $ loss. He lost the opportunity to buy something. The auctioneer no longer has the item so he can't sell it to Fse at any price. |
"No court is gonna take the items away from the system purchaser and Fse did not lose any $, so unless Fse asked the court to enjoin the auctioneer from that practice, there is not much else they could do."
Actually, there is something you can do. A lot of people overlook small claims court. Laws vary from state to state. Generally speaking, though, you can easily file a claim in the county where the auction was held. You would have a very good chance of winning. Also, if the auction company fails to come to trial, you win by default. Not only that, small claims court has the ability to collect money and/or issue some type of judgement on the looser even if they live far away. I can't give you more details on that because I haven't need to use small claims court in quite a while. If you are interested, there are several good books on the subject that are geared to regular people, as opposed to lawyers. The UCC is a very good reference as well. |
Zd- I agree, contract was created. Auctioneer broke contract, what are the damages? Not a lawyer (but I play one on TV) but again, what kind of relief could you get? No court is gonna take the items away from the system purchaser and Fse did not lose any $, so unless Fse asked the court to enjoin the auctioneer from that practice, there is not much else they could do. I suppose there might be a consumer protection law violation but that would probably result, at best, in a consent agreement not to do it again. Best to just chalk it up to experience and make a mental note to avoid that guy's auctions. |
"However, the reality is that there is no practical relief you could be granted, because you didn't suffer any loss in an economic sense."
I know why you would think that but its not really relevant. Assuming there are no special laws for a case like this, or a wavier of rights by the OP, when those speakers were won by Fse, the auction company had a legal obligation to sell the speakers to him. When he won the auction, a contract was created. Beyond that, nothing else matters. Just because there was no loss doesn't mean they could just walk away from the deal. Raks, in his post is correct. If the OP decided not to pay, the auction could come after him for the exact same reason; there was a contract. |
I don't do auctions but this is the craziest thing I ever heard. What would the auctioneer do in the event the hammer came down and the winning bidder refused to pay unless the auctioneer lowered the bid price? |
Sleazy practice at best; deliberately deceptive in all likelihood. It seems to me like they knew they had a bidder for the whole system and used the individual bidders as "shills" to run up the price. Plenty of very questionable practices in auction world; on line and in person. However, the reality is that there is no practical relief you could be granted, because you didn't suffer any loss in an economic sense. Even if what they did is "illegal" letting it go like you did is probably best for your mental health. |
Thanks guys. I am aware of the degradation of Apogees, I have Calipers right now. This pair of Duettas was in excellent shape so the price was right to me.
I don't have the form they had me sign and I'm kind of over it now so I don't think I will go further. Especially since I scored about 600 albums in excellent shape today for a fair price.
I think someday I will get a pair of rebuilt Duetta sigs for a fair price and then all will be good in my world. |
I agree with Hifiharv,they would have been nothing but a headache and an expensive one to boot! Consider that you had a lucky day. |
I grew up working in estate auctions where child labor laws were severely subverted! I didn't complain much since the auction company was responsible for everything else in my life! The laws governing auctions can vary from state to state and town to town.
We/my Dad would have tried to sell the whole lot first, usually with a reserve, and then sold the set piece by piece if the complete lot didn't sell. Seems to me you got a raw deal! The Auctioneer should have taken a few moments before taking bids to explain how the sale would go.
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Unless there are special laws that govern auctions, what they did was probably not legal. When you won the auction, you had a contract for sale. The only exception I can think of is if you waved certain rights in advance. Most likely that would have taken place when you registered for the auction. If they made you sign any papers that's where you would find it. |
You are probably better off without them. If they haven't already been restored with new ribbon panels (yes, all of them), you will be facing that expense and trouble. Had Calipers once and I believe they are all doomed eventually.It's just the nature of the design/construction. Wasn't so bad back when the Co. was in business, but not now. |
