Auctioneers and Misdescription: Between Scylla and Charybdis
| DOI | http://doi.org/10.1111/j.1468-2230.2010.00830.x |
| Published date | 01 November 2010 |
| Date | 01 November 2010 |
Auctioneers and Misdescription: Between Scylla and
Charybdis
Frank Meisel
n
In Elidor Investments SA vChristie’s, MansonWoods Ltd the court implied a term as to Wednesbury
reasonableness into an auctioneer’s agency contract which fettered its ‘sole and complete discre -
tion’to describe lots. It is contended that, in so doing, the courtu njusti¢ably and unnecessarily
extended the jurisdiction i nto areas where it was not required and, in granting an i njunctionto
restrain the sale of the lots,failed properly to applythe appropriate criteria.
INTRODUCTION
Auctioneers will inevitably apply somedescription to lotsput up for sale, whether
in a catalogue printed andprovided tothose attending the sale or, increasingly, by
wayof the internet.Additionally, an auctioneerwill often give information orally
from the rostrum.
An auctioneer who is instructed by his principal, the seller,to describe lots in a
particular way but fails to do so, with a resultant failure to achieve the optimum
price, will be liable to his client.
1
On the other hand an auctioneer who blindly
relies on his client’s descriptions, attributions or assertions about provenance may
be liable to a buyer for negligent misstatement under Hedley Byrne & Co Ltd v
Heller & Part ners Ltd.
2
Auctions descriptions may, in fact, expose the auctioneer
to a very wide range of liabilities. These include potential criminal liabilities,
3
potential direct liability to the buyer both in tort and (to a limited extent) in con-
tract
4
and indirect liability by rendering the seller liable to the buyer for breach of
the term as to correspondence with description implied into the sale contract
under section13 of the Sale of GoodsAct 1979, as amended, or for misrepresenta-
tion inducing that contract, under the Misrepresentation Act 1967. In these cir-
cumstances the seller may be able to recover under an indemnity from the
auctioneer any damages awarded and for losses consequent on rescission of the
contract.The hazard may be avoided to some extent by employi ng conservative
or ‘hedged’descriptions and attributions but that can expose the auctioneer to an
action byhis seller for under-selling the lot. In its most damaging form this could
n
Senior Lecturer, Aston Business School,Aston University.I am indebted to my colleague Professor
Jill Poole for her many helpful comments on an early draft of this note.
1Brown vDraper (1975) 233 EG 99.
2[1964] AC 4 65.
3eg under the Consumer Protection fromUnfair TradingRegulations 2008, S I 2177.
4On which see F. Meisel,‘Auctioneersand Buyers:AspecialRelationship?’(2005) 21(4) PN 250^256.
Auctioneers and Misdescription
103 6 r2010The Author.The Modern LawReview r2010 The Modern Law ReviewLimited.
(2010)73(6) 1026^1047
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