Chapter 8: Critical assessment
A comparative analysis of the current regime governing the auctioneer’s liability reveals several outcomes that affect the involved parties, the courts and the art market. These results are developed in Section 1. Section 2.1 presents a comparative analysis between the purchaser’s and the consignor’s position at auction. Both sections lead to the question as to whether the actual and developing legal regime is fair and beneficial to all parties in a specific case, and to the art market in general. Section 2.2 attempts to evaluate the fairness and benefits of the prevailing legal and practical situation.
The analysis of the current legal regime and practical standards applicable to the sale of sleepers at auction shows significant repercussions for the parties directly involved in the sale and the courts confronted with the resolution of sleeper disputes, as well as the art market as a whole.
To begin with, legal scholars are divided on the issue of what legal relationships arise at auction. The debate is primarily caused by the divergence between the auctioneer’s actual practice and what is stipulated in their business terms, and the legal limits or potential risks imposed on their contractual freedom. Moreover, the characterisation of the legal relationships concerns scholars as it creates a position of dual representation for the auctioneer. The first section below addresses the main issues in these legal relationships and the justification of the auctioneer’s dual representation position applied in each of the three jurisdictions. Further implications...
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