Chapter 9: Interim conclusion
On balance, the analysis of the law and practice concerning the sale of sleepers at auction leads to three main conclusions.
First, under the jurisdictions of Switzerland, England and the United States, the contractual relationships governing art auction sales are not clearly defined by the law and are subject to scholarly debate.
A main controversial aspect in the legal relationships consists in the limited agency relationship between the auctioneer and the purchaser, which generates the auctioneer’s dual representation position. An agency relationship between the auctioneer and the purchaser may arise independently of the sale contract and cause conflict of interests concerns. In order to reduce these concerns to a minimum level, the auctioneer must act only as the purchaser’s agent to the extent that is necessary to effectively conduct the auction sale. Principally, the agency relationship with the purchaser allows the auctioneer to place bids on the purchaser’s behalf, prepare the sale contract (under the English and U.S. legal regimes) and to intervene post-sale between the consignor and the purchaser in the event of a dispute. Given the risks that dual representation entails, the consignor and the purchaser must be clearly informed on the rights, duties and obligations in relation to the consignment and the sale available to all parties involved.
Secondly, the reasonable auctioneer standard, i.e. the standard case law created to assess the auctioneer’s liability when selling a sleeper, lacks clarity and predictability. The auctioneer is not legally required to...
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