Legal Theory of Auction

Kristijan Poljanec is a postdoctoral researcher in law at the University of Zagreb, Croatia.

Preface

List of acronyms

Table of cases

Table of legislation

Introduction

Price-determination methods

Brief note on the auction history

The rationale for this book

About the comparative legal method adopted in this book

Lack of comparative researches

Local character of auction sales

Self-regulatory character of auction rules

Fragmentary character of auction law

The comparative method

The objectives of the comparison

Contents of this book and the problems covered

Defining the legal concept of auction

Defining the structure of auction relationships

Defining the legal concept of internet auction

Filling the gaps in the EU resale right regime

Defining the legal nature of auction guarantees and the influence thereof on the position of the auctioneer

Finding a demarcation line between licit and illicit priceinfluencing tactics at auction

1 Legal concept of auction

Introduction

Economic concept of auction

Models

One-sided and double-sided auctions

Private value and common value auctions

Open-bid auctions and sealed-bid auctions

Revenue equivalence theorem

The theorem

The critics of the theorem

Legal concept of auction

Typical models

Ascending (English) auction

Features

Public and private auctions

Written and oral auctions

Absentee bids

Limited and unlimited absentee bids

Descending (Dutch) auction

Features

Subcategories

Is Dutch auction an auction at all?

Auction and auction-like bidding mechanisms

Games of chance and auctions

‘Controlled’ uncertainty

No risk of losing the stake

Purpose

Competitive bidding

Public procurement and auction

Stock exchange and auction

Auction and the public promise of a reward

Interim conclusion

2 Auction relationships

Introduction

Auction participants

Seller

Auctioneer

The notion

Consigned and property auction

Bidders

Objects

Legal relationships at English auction

Consignment agreement

Continental law

Intermediation

Representation

Direct representation

Indirect representation

Auctioneer acting as sole contractor

Ambiguities concerning representation

Rights and duties of the auctioneer

Fiduciary duties of the auctioneer

Personal engagement in carrying out the mandate

Avoidance of conflict of interest

Adherence to the consignor’s instructions

Receipt of the price

Rights

Brokerage fee

Damages

Advances

Anglo-American law

Agency

Rights and duties of the auctioneer

The authority of the auctioneer

Fiduciary duty

Personal engagement of the auctioneer

Receipt of the price

Rights

Brokerage fee

Indemnities

Relationship between the auctioneer and the bidders

Continental law

Anglo-American law

The relationships between the bidders

Contract of sale

Continental law

Theory of invitation

The existence of an offer

The effect of the last (in)valid bid for previous bids

Higher bid

Duration of a bid

Notification of the knock-down

Auction sale with a ‘retention of higher offer’ clause (in diem addictio)

Legal implications of the auction sale

Transfer of risks and conveyance of property

The reserve price

Anglo-American law

Sale with reserve

Conditional auction

Sale without reserve (absolute auction sale)

Sale without restrictions

Transfer of risks and conveyance of property

Legal relationships (Dutch auction)

Interim conclusion

3 Internet auction

Introduction

The legal concept of internet auction

Internet auction and other distance sales

Auction models

English (ascending) and Dutch (descending) auction

Sealed-bid auctions

Live auctions and combined internet auctions

Business-to-consumer auction

Consumer-to-consumer auction

Business-to-business auction

Business-to-administration (business-to-government) auction

Government-to-consumer auction

Proprietary and intermediary auctions

User-to-customer and auctioneer-to-customer auctions

‘Pay-to-sell’ and ‘pay-to-buy’ auctions

Differences between internet and physical auction

Auction platform as a neutral intermediary

Auction platform as an auctioneer

The agency character of an auction platform

Virtual knock-down: functional equivalent to the traditional fall of the hammer

Closing remarks

Disadvantages of internet auctioneering

Anonymity

Risks of mistakes

Security risks

Delocalisation of auction sale and the problem of applicable law

The Rome I Regulation

The general regime for (internet) auction sales

Special regime for consumer (internet) auctions

The jurisdiction: principle of forum loci acti

Platform’s immunity from liability

Legal relationships

User framework agreements

Individual user agreements

Seller-auctioneer relationship

Bidder-auctioneer relationship

Contract for sale

Interim conclusion

4 Auction and the EU artist’s resale right

Introduction

Origins of the resale right

Civil-law and common-law views on the resale right

Civil law

Moral grounds for the introduction of the resale right

Need to fight social inequalities

Common law

Utilitarian theory of copyright

Free alienation of personal property

EU Resale Right Directive

The legislative history

Scope of application of the EU resale right

Notion and legal nature of the resale right

Transactions subject to resale right

Professional art sales

Is an internet auctioneer an ‘art market professional’?

Sales exempted from the resale right

Persons liable for payment

Seller’s liability –the principal model

Alternative liability regimes

The auctioneer’s liability for payment of royalty

Circumvention of strictness of liability rules via indirect representation

The ‘passing-on’ of the royalty

Works covered by the resale right

Claim for payment of royalty

The establishment of the royalty claim

Basis for calculation

Deduction of auctioneer’s fees from the calculation basis?

Calculation, collection and management of the royalty

Persons entitled to royalty

Disclosure requirements

Interim conclusion

5 Auction guarantees

Introduction

Auction guarantees

Types of auction guarantees

In-house guarantees

Third-party guarantees

Irrevocable bid (stand-by guarantee)

Legal nature of auction guarantees

Auction guarantee and unilateral promise to buy

Auction guarantee and ‘restitute or buy’ contract

Conditional private-treaty sale

Auction guarantees at continental auction sales

Impact of the auction guarantees on the art market

Auction guarantees meet critics

Economic advantages of auction guarantees

Reforming the auction guarantees

Collective funding campaigns: alternative to auction guarantees?

Interim conclusion

6 Price-influencing tactics

Introduction

Sham bidding

Civil-law aspects

Continental law

Knock-down to the best bidder

Annulment

Convalidation

Knock-down to the seller or puffer

Anglo-American law

Knock-down to the best bidder

Annulment

Convalidation

Punitive damages

Knock-down to the seller or puffer

Competition-law aspects

Continental law

Person entitled to seek damages

Person liable for damages

Scope of damages

Anglo-American law

Proving causation and measure of damage in antitrust cases

Abstention agreements (‘bid-rigging’)

Abstention from bidding for the benefit of a single bidder (pactum de non licitando)

Civil-law aspects

Continental law

Annulment of the sale

Convalidation

Anglo-American law

Annulment of the sale

Convalidation

Competition-law aspects

Continental law

Anglo-American law

Bid-rigging for the joint account of several bidders (‘auction rings’)

Damages under civil law

Damages under competition law

Bona fide partnership for the joint account of bidders (buyers’ consortium, Bietergemeinschaft, Einkaufsgemeinschaft, convention d’association)

Interim conclusion

Conclusion

Bibliography

Index