Chapter 5: Current regime governing the auctioneer’s liability
The major auction houses operate under very similar contracts for their sales in Switzerland, England and the United States. In addition, the agency relationship between the consignor and the auctioneer gives rise to similar agency duties under all three jurisdictions. Moreover, all three jurisdictions dictate restrictions on the auctioneer’s standard liability disclaimers, in particular for transactions involving consumers. However, from a legal standpoint, the comparison of the applicable regime under these three jurisdictions reveals some fundamental differences, especially between the Swiss civil law jurisdiction and the two common law jurisdictions. To begin with, the agency relationship between the consignor and the auction house is characteristic of every auction sale. However, the concept of “agency” differs according to its understanding under Swiss law and both common law jurisdictions. Under Swiss law, agency is a type of contractual relationship, whereas under the common law understanding, it constitutes a consensual relationship which is not necessarily formed by a contract. A common law agency relationship may be created when the agent simply performs a service the principal requested. Agency may begin as a mere status relationship, meaning that the “auctioneer has a partial monopoly over the means for satisfying the needs of the consignor.” The creation of an agency relationship is therefore more a question of fact. The Swiss counterpart to that status relationship is “representation.” Specifically, Swiss law distinguishes between direct and indirect representation according to whether the auction house acts in the consignor’s name, or under its own name. The common law jurisdictions make no such distinction.
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