Auctions Law and Practice

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ISBN: 9780199266166 | 0199266166
Cover: Hardcover
Copyright: 6/1/2006

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This is the new edition of the leading work on the law and practice of auctions. The book looks at every aspect of auction practice from the economics of auction sales and restrictions on trading to criminal and other liabilities of the auctioneer. There is also a chapter on VAT. There have been important recent developments in the field of consumer protection and the book has been substantially revised to reflect these. In addition to general updating the new edition considers the practice of online auctions for the first time. There is also a section on looted art . The book continues to draw on case law from other common law jurisdictions.

Foreword to First Edition

vii

Table of Cases

xxvii

Table of Primary Legislation

xxxvii

Table of Secondary Legislation

xliii

1. The Evolution and Economics of Auction Sales

A. Auctions Ancient and Modern

Definition of Auctions

Types of Auction

History of Auctions

Major British Auction Houses

Economic Considerations in Auction Sales

B. The Impact of the Internet

Uses and Abuses

Are Internet Auctions really Auctions?

Problems on the internet

Specialist online auctions

Trading economics

Tarisio

Conclusions

Droit de Suite: Resale Rights for the Benefit of the Author of an Original Work of Art

Sales covered

Royalty rates

Liability for payment

2. Auctioneers: Restrictions on Trading

Qualifications

Licensing

Display of Names and Other Notices

Business Association

Firm name

3. Capacity and Authority

Introductory

Authority

Varieties of authority

Actual authority

Apparent authority

Agency of necessity

Ratification

The Authority of Auctioneers

Sale by auction

Sales in defiance of a reserve

The problem of authority

Sales expressed to be without reserve

Contractual analysis of auction sales

Conceptual analysis of contracts

The nature of the bid

The right to withdraw a lot

Consideration

Damages quantification

Implied authority

Signing the contract

Collecting payment

Describing the property: authority to warrant

Delegating authority

Binding the vendor

Binding the purchaser

Termination of authority

Natural termination

Revocation

4. The Rights of an Auctioneer

Rights Against the Vendor

The right to remuneration and expenses

Commission

Construction of the contract

Implied term

Express provision where sale otherwise than by the agent

The amount of the commission

Dispute as to the incorporation of a term

No contractual provision as to commission

Loss of commission

Quantum meruit

Expenses

Indemnity

Lien

Property attached

Nature of the lien

Enforcement of lien

Other rights

Rights Against the Purchaser

Action for the price of goods

Sales of land

Rights Against Third Parties

Wrongful interference with goods

Privilege from distress

Interpleader

5. Duties and Liabilities of the Auctioneer

Duties to the Vendor

Duties relating to performance

To act in accordance with his instructions

To act with skill and care

What is the standard of care required?

Duty to secure a binding agreement

Duty to describe the property accurately

Under-selling the vendor's goods

Duty to obtain the deposit and price

Fiduciary duties

Taking commission from both parties

Purchasing the principal's property

Obtaining a secret profit

Duty to account

The jus tertii defence

Common law

Statutory modifications

Interest

Duty to care for the goods

Liability for negligence

The requirement of reasonableness

The extent of the exclusion

The availability of insurance cover

Duties and Liabilities Owed to the Purchaser

The auctioneer as agent of the purchaser

Personal contractual liability to the purchaser

Breach of warranty of authority

Liability on the contract of sale

Liability under a particular arrangement

Other liability

Duty with regard to the goods purchased

Liability for physical injury

Liability for misrepresentations

In deceit

In negligence

On a collateral warranty

Duties relating to the deposit

Interest on the deposit

Liability for non-investment

Liability for interest earned

Loss of the deposit

Duties and Liabilities to Third Parties

Conversion and acts amounting to conversion

Sale without the authority of the true owner

Estoppel

Sale in market overt

Sale under a voidable title

Sale by a mercantile agent

Sale by seller remaining in possession

Sale by buyer in possession

Sales of motor vehicles subject to hire-purchase agreements

Refusal to deliver up to the owner

Other acts short of a sale

The notice issue

Time limits

Other duties to third parties

Negligence

Nuisance

6. Conditions of Sale Affecting Buyers and Bidders

Introduction

The Contractual Framework

Incorporation into the Contract of Conditions

Vulnerability of Conditions of Sale

Conditions relating to the title to, compliance with description of, and quality of, the goods sold

Misrepresentations

Implementation of the EC Directive on Unfair Terms and Consumer Contracts (93/13/EEC) by the Unfair Terms in Consumer Contracts Regulations 1999

Common Problems Concerning Buyers, Dealt with by Conditions of Sale

The seller's title

Non-compliance with description

Deliberate forgeries or counterfeits

Unsatisfactory goods

The Buyer's Premium

Payment by the buyer

Collection of purchases and passing of the property

Buyer's responsibilities for lots purchased

Conditions Governing the Conduct of the Auction

Are bidders other than the buyer bound?

Definition of buyer

Disputed bids

Minimum increment

Admission to premises

Refusal to accept bids etc

'Phantom' and unhinged bidders

Bidding practices

Scope of the right to bid

Common law

Equity

Statute

Misuse of the right to bid

Inventing bids

The criminal offence

Controlling the right to bid

Pretending that an item has been sold

General Comment on Conditions of Sale

Law reform

Sales by auction

7. Export Licensing

Outline of the System

Criminal Sanctions

The Controls

EC control

UK control

Embargoed destination

Open General Export Licence (OGEL)

Open Individual Export Licences (OIEL)

Individual export licences

Cases referred to the Reviewing Committee

The Committee's decision

Comments

The legal infrastructure

Cultural Property

8. Criminal Practices at Auctions and their Consequences

Mock Auctions

Auction Rings

Auctions (Bidding Agreements) Acts 1927 and 1969

Explanatory notes on these provisions

Interpretation of these statutory provisions

Possible reform

Setting sales aside

Other Dishonest Practices at Auctions

False Trade Descriptions

Possible defences

Mistake, accident, etc

False Estimates

Prohibition on Sales

Wild birds, animals and endangered species

Tainted cultural objects

Firearms and other offensive weapons

Firearms

Antiques

Honest belief irrelevant

What is an antique? 4

Other offensive weapons

Other offences

Selling unsafe goods

The general safety requirement under the 1987 Act

Safety regulations

General Product Safety Regulations 2005

Money laundering

9. Sales of Land by Auction or Tender

Auctions

Practice and procedure

Home information packs

General statutory requirements

The Law of Property (Miscellaneous Provisions) Act 1989

Sale of Land by Auction Act 1867

Conditions of sale as to the conduct of land auctions

Problems Regarding Misrepresentation and Misdescriptions

Misrepresentations prior to the sale

Exclusion clauses and disclaimers

Oral attempts to modify written terms

Damping the sale

Written statements attempting to disclaim misrepresentations and misdescriptions

Sale of residential investment property by public auction

Tenders

Practice and procedure

The content of tender documents

10. Vehicle Auctions and Specialized Auctions of Other Property

Vehicle Auctions

Conditions of sale

Some special features of motor auctions

Selling unroadworthy cars

Criminal liability

Civil liability

Trade descriptions

Miscellaneous Auctions of Other Commodities

Introduction

Plant and machinery

Sales of reversions and future property interests

Livestock sales

Statutory controls

Conduct of the sale

Diseased etc animals

Dangerous animals

Sales of animals sold for slaughter

Milking of cows

Meat and Livestock Commission schemes

Sales outside the ring

11. Sales by Vendors in Special Positions

Introduction

Trustees and Other Fiduciaries

Mortgagees

Pawnbrokers

Note on the above section

Sales Under Writs of Execution

Sales of Land by Order of the Court

Sales Under Distress for Rent

Sales Under Other Miscellaneous Powers

Property in the Possession of the Police

Problems of Title

12. Value Added Tax

History

Goods sold outside the 'special scheme'

Seventh Directive

Implementation

Special position of auctioneers

Appendix 1: Conditions of Sale

377

(28)

Christie's Consignment Agreement

377

(7)

Conditions of Sale at Christie's

384

(5)

Conditions of Sale at Sotheby's

389

(16)

Appendix 2: Statutory and Other Material: Selected Extracts

405

(32)

Sale of goods

405

(17)

Criminal law

422

(10)

Land

432

(4)

Supplies of a service

436

(1)

Appendix 3: Rules of Procedure: Selected Extracts

437

(8)

Appendix 4: Title in Cases of Theft of Goods in the UK

445

(2)

Index

447

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Auctions Law and Practice

Summary

Author Biography

Table of Contents

Supplemental Materials