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Auctioneers and auctions

An auctioneer does not require any general auctioneer’s licence for the purposes of carrying on business.

The National Association of Valuers and Auctioneers (NAVA) is a professional self-regulating body solely concerned with valuers and auctioneers. It represents over 280 valuers and its aim to promote and ensure professionalism and best practice. Member and Fellow grade must be qualified and agree to follow Rules of Conduct and Code of Practice. NAVA’s umbrella body is the National Federation of Property Professionals (NFoPP).

Auctioneer's name and address


Under the Auctioneers Act 1845 s.7, every auctioneer, before beginning any auction, must display a notice containing his full christian and surname and residence painted, printed, or written in large letters publicly visible and legible, in a conspicuous part of the room or place where the auction is held, so that it is easily legible to all.


The notice must be displayed during the whole time of such auction being held. There must be attached to the notice a copy of the Auctions (Bidding Agreements) Act 1927 and the Auctions (Bidding Agreements) Act 1969 (see below).

Enforcement


Civil enforcement

There is no provision for civil enforcement.

Legaleze comment: it seems as though breach of the 1845 statute would not affect the validity of any sale by auction.


Criminal enforcement

Breach of the 1845 Act is an offence. If any auctioneer begins any auction, or acts as auctioneer at any auction, in any room or place where his name and residence is not so painted or written on a ticket or board so affixed or suspended, and kept affixed or suspended as aforesaid, he shall forfeit for every such offence the sum of twenty pounds.

Illegal bidding agreements (England and Wales; Scotland)


The Auctions (Bidding Agreements) Act 1927 and the Auctions (Bidding Agreements) Act 1969 forbid any dealer from giving or offering any inducement not to bid for any lot at an auction; it is also an offence to accept or attempt to obtain any such inducement. An agreement not to bid is sometimes called “rigging” or a “bidding ring”.


A “dealer” means a person who in the normal course of his business attends sales by auction for the purpose of purchasing goods with a view to reselling them.

Joint account purchase exception: the above prohibition does not apply if the dealer prior to an auction agrees in writing with others, provided a copy of the agreement is deposited with the auctioneer.

Enforcement


Civil enforcement

Where a dealer is a party to a vote rigging agreement, the seller is entitled to avoid (i.e. cancel) the contract under which the goods were purchased. If the buyer has obtained possession of the goods and the goods are not returned in the same condition, all the parties to the rigging are liable to make good to the seller any loss he sustained by reason of the operation of the agreement.


Criminal enforcement

if any dealer gives or offers any inducement for abstaining from bidding at a sale by auction, or if any person agrees to accept or attempts to obtain from any dealer any such inducement, he is guilty of an offence triable either summarily or on indictment. On conviction on indictment, the penalty is imprisonment for a term not exceeding two years or a fine or both.


In England and Wales, the Attorney-General must consent to any prosecution. In Scotland, the Lord Advocate must do so.

Registration of auction premises


Auction premises may be required to be registered with the local council. For further information about the need for a licence, enquire of the local authority.

Registration of auction premises in London


In London, any premises or stall where the sale of 'prescribed articles' by way of competitive bidding takes place must be registered with the local borough council.

'Prescribed articles” means any plate, plated articles, linen, china, glass, books, prints, furniture, jewellery, articles of household or personal use or ornament or any musical or scientific instrument or apparatus;

'Sale of goods by way of competitive bidding' means any sale of prescribed articles at which the persons present, or some of them, are invited to buy articles by way of competitive bidding. “Competitive bidding” includes any mode of sale whereby prospective purchasers may be enabled to compete for the purchase of articles, whether by way of increasing bids or by the offer of articles to be bid for at successively decreasing prices or otherwise;

A 'stall' includes any stand, marquee, tent, vehicle (whether mobile or not), site or pitch from which prescribed articles are sold

Application for registration


Applications may generally be made by post or online.


In considering an application, a borough council must take into account the suitability of the premises or stall for conducting the sale of goods by way of competitive bidding having regard to:


* whether the premises or stall are unsuitable for the use of conducting the sale of goods by way of competitive bidding;


* whether the intended use of the premises or stall is likely to cause nuisance;


* whether the premises or stall have been used for the purpose of conducting the sale of goods by way of competitive bidding otherwise than in good faith;


* whether the applicant, occupier or the proprietor for the time being of the premises or stall is a fit and proper person to be concerned in the conduct or management of any sale of goods by way of competitive bidding.

A borough council may, on registering premises or a stall under this Part of this Act, or at any other time in respect of premises or a stall so registered, impose such conditions as may be reasonable. A borough council may at any time revoke a registration under this Part of this Act on any ground upon which they are authorised to refuse to register the premises or stall, or if they are satisfied that a condition imposed on registration has not been complied with.

Exemption from registration


Registration is not required for:


* Any sale of goods by way of competitive bidding so long as no substantial part of the prescribed articles was brought onto the premises or stall for the purposes of the sale.


* Any sale for the purpose of assisting the funds of any voluntary organisation [i.e. any body whose activities are carried out otherwise than for profit] if the whole, or substantially the whole, of the proceeds of sale are devoted to the funds of the organisation.


* Any sale of goods by way of competitive bidding conducted or managed by a person who has provided such relevant information and paid such fees as the borough council of the borough in which the sale is to take place may reasonably require and to whom the borough council has granted a certificate of exemption. A certificate of exemption is not available where a sale by way of competitive bidding has taken place on those premises or from that stall within the preceding six months.

Tacit consent: some London boroughs apply tacit consent and some do not.

Appeals: there is a right of appeal to a magistrates' court from a refusal to register premises or a stall, the revocation of a registration of premises or a stall, a condition imposed or the variation of a condition imposed under this Part of this Act.

Enforcement


Civil enforcement

There is no provision for civil enforcement of the London legislation.


Criminal enforcement

It is an offence to sell or permit the sale of goods by way of competitive bidding at unregistered premises or stalls, and to give false information in an application for registration. A person guilty of an offence is liable on summary conviction to a fine not exceeding level 5 on the standard scale.


There is a due diligence defence and provision for director’s criminal liability

What's new items

19/01/2014: Sotheby’s not liable for failing to note painting might be a Caravaggio

Thwaytes v Sotheby's [2015] EWHC 36 (Ch)

Caravaggio painting the Cardsharps

The claimant Mr Thwaytes engaged the defendant auction house to sell a painting which it had appraised as being a copy of a well-known work by Caravaggio, ‘I Bari' (the Cardsharps). The work was sold at auction for £42,000.

The buyer was a well-known art scholar of great renown and after the sale he declared the painting to be by Caravaggio himself. The claimant claimed that the auction house was negligent in its appraisal of the work, basing the loss on the additional price which might have been realised had the catalogue drawn attention to the possibility of the work being by Caravaggio.

The High Court Chancery Division ruled that the defendant not been negligent, as it had taken all the steps before sale which an international auction house ought reasonably to have taken.

 

[Original text of the case report supplied by BAILII gratefully acknowledged. Crown copyright: contains public sector information licensed under the Open Government Licence v2
Legaleze is solely responsible for the above text which is a summary only and the full report should be read]

 

[Page updated: 04/02/2015]

 

 

 



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