Articles Posted in Auction Law

A picture of the Chicago Picasso

The Chicago Picasso in Daley Plaza, copyright 2023 Harshman Ponist Smith & Rayl

Lawyers and others often say that “may” is permissive and “shall” is mandatory.  By that, they mean that when a statute says a person “may” do something, that person has the discretion to do it or not, but when a statute says a person “shall” do something, the person has no choice. Or, as the Drafting Manual for the Indiana General Assembly puts it:

To create a duty, say “shall.”

istockphoto-477779010-170x170-2-150x113From a legal perspective, auctions are interesting transactions.

Offer and acceptance in most sales

Let’s start by discussing an ordinary contract for the sale of goods, one not created at auction. Law students learn in their first year that the formation of a contract requires, among other things, offer and acceptance. Generally speaking, an offer must include all the essential elements of a contract and may include other terms. An acceptance must be the “mirror image” of the offer. That means, to form a contract from the offer, the person to whom the offer is made must accept it exactly as presented, without changing any of the terms or introducing new ones. A purported acceptance that changes, removes, or adds terms is not an acceptance at all. It is a rejection of the offer and the extension of a counteroffer.

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