Chapter 7: Comparative analysis
The analysis in this chapter focuses on the results of the foregoing research in a comparative approach. Interestingly, in all three jurisdictions, the legal relationships arising at an auction sale are subject to controversy. Such controversy is mainly due to a divergence between the wording of the contractual terms and conditions of sale versus the factual situation actually present at the time of sale. Section 1 examines the controversial aspects of legal relationships that arise in the sale of sleepers at auction – that is, within the parties to the sale contract and the auctioneer’s dual representation.In Section 2, the analysis centres on the difficulties in assessing diligence, particularly the challenges posed by standards the courts have established and refer to when assessing the auctioneer’s diligence.Section 3 looks at divergences between the auctioneer’s approach with regard to consignors and to purchasers. In other words, it examines how liability can be disclaimed at the exact same time that authenticity can be guaranteed.Legal relationships differ among the three examined jurisdictions. The main difference resides in that the auction house is arguably a party to the sale contract under the Swiss indirect representation scheme, whereas it is not a party to the sale contract under both English and United States law. This difference is discussed in the first following section.
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