Chapter 6: Interim conclusion
The national laws studied in Part II do not all accommodate the auctioneer’s and the consignor’s needs in selling artworks and antiques at auction. In particular, there is authority suggesting that Swiss law does not allow the auctioneer to contract for the account of an unnamed principal. In order to protect the consignor’s anonymity, scholars argue that the auctioneer is required to enter into the sale contract with the purchaser himself. Common law jurisdictions are much more favourable to client confidentiality and explicitly protect the purchaser’s anonymity in art auction sales, as expressed in the 2013 Regulations under English law,1 and the New York decision William J. Jenack Estate Appraisers and Auctioneers, Inc. v Albert Rabizadeh.2
Under all three jurisdictions, the applicable law allows the auctioneer to act as agent to both the consignor and the purchaser. This situation of dual representation presents conflict of interest issues that might potentially arise.3
In principle, the legal relationships prevailing at an art auction require the auctioneer to make an attribution with skill and care and to act in the consignor’s best interests. The auctioneer’s compliance with his duties is assessed according to what statement a reasonable or competent auctioneer would have made in the same situation and being an auctioneer of the same standard. Courts refer to a hypothetical auctioneer to assess the given auctioneer’s diligence in establishing the attribution. Under all three jurisdictions, determining the auctioneer’s diligence is a challenging undertaking, particularly because of...
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