I have had very limited experiences in buying direct from auction houses, but there are terms and conditions of sale, unique to each company/event, that can differ from other buying experiences. I would highly recommend that any collector, before participating in such an auction, carefully review the terms and conditions of the sale, typically outlined in the catalog. Even with the same company, these are prone to change catalog to catalog, sale to sale.
What follows are a few examples from various auction houses and some personal comments and reactions. Given the number of auction houses dealing, in whole or in part, in original props, this first article will take a look at just three examples.
These are just my own personal observations and interpretations – I’m not an attorney, so it is merely a subjective layman’s perspective. Also, given the length and breadth of these terms in many cases, I am only looking at certain aspects in each example…
Little John’s Auction Service
Little John’s Auction Service is the auction house which handled the recent Stembridge Collection event (“Little John’s Auction Service: Stembridge Collection – June 5, 2007“). What follows are the Special Conditions of Sale printed in the catalog for the sale:
SPECIAL CONDITIONS OF SALE RELATING TO THE STEMBRIDGE COLLECTION:
1. All post-1898 firearms must be registered in according to Federal, State and local laws. (Special transfer
through Stembridge on the John Wayne stagecoach Carbine, Lot #100.)
2. All items in this catalog are sold as movie props and are not guaranteed to shoot, chamber, or operate as a
firearm.
3. No warranty or guarantee to originality, completeness, condition, finish, or any aspect normally made to collectible
firearms is offered. SOLD AS PROPS.
4. The representations made by Little John’s Antique Arms, Inc. are made on credible information from owners
and employees of Stembridge Gun Rentals and identifications tags from the collection of Stembridge Armory.
A further documenting letter can be obtained from Sid Stembridge, currently operating Stembridge Gun
Rentals, Inc., located at 431 Magnolia Ave., Glendale, CA, 91204, phone: 818-246-4333, at a minimum charge
of $100 plus hourly research fees.
5. A certificate stating the catalog information will be included with every lot.
6. All sales are final. Buyer must satisfy his own condition, provenance, movie history and any buying requirements
before bidding. NO REFUNDS UNDER ANY CIRCUMSTANCES IN THIS SALE.
Of course, in regards to provenance and authenticity, Item 6 above is key – it is incumbent upon the buyer to verify provenance. All sales are final, and no refunds are granted under any circumstances.
The upside to this policy is that it is clear, short, and to the point. A buyer’s expectations are set to know that every sale is final in all circumstances, and to bid accordingly. Should someone have won a piece with use attributed to a certain film, and later learn that is not the case, there is no recourse of any kind with the auction house – it is merely a risk of participating in the auction.
Profiles in History
What follows are excerpts from the latest Profiles in History catalog (“Profiles in History Auction 28 Catalog Available“) related to authenticity and Bidders:
10. Warranties. Profiles does not provide any warranties to Biders or Buyers, whether expres or implied, beyond those expresly provided for in these Conditions of Sale. All property and lots are sold “as is” and “where is”. By way of ilustration rather than limitation, neither Profiles nor the consignor makes any representation or warranty , expresed or implied, as to merchantability or fitnes for intended use, condition of the property (including any condition report ), correctnes of description, origin, measurement, quality, rarity, importance , exhibition, relevance, attribution, source, provenance, date, authorship, condition, culture, genuinenes, value, or period of the property.
In the excerpt above, as related to authenticity, it is important to note that “…neither Profiles nor the consignor makes any representation or warranty , expresed or implied, as to… correctnes of description, origin… importance… attribution, source, provenance…”
This is important to a prospective buyer, in that any important attribute as to an original prop – its authenticity (i.e. if it is “Original”), its importance and attribution (i.e. hero vs. stunt, or who it was used by, or if it is an unused production piece or actually filmed), its history of ownership (i.e. source and origin) – none of these things are warrantied by the auction house.
So a prospective buyer, reading a catalog, should do so with the understanding that the auction house does not formally stand behind those marketing descriptions, in terms of extending a warranty to the buyer that those descriptions are true and correct, as stated.
Additionaly , neither Profiles nor the consigner makes any representation or warranty , expres or implied, as to whether the Buyer ac quires rights in copyright or other intelectual property (including exhibition or reproduction rights) or whether the property is subject to any limitations such as ‘droit morale’ (moral rights) or other rights afecting works of art. profiles does not make any representation or warranty as to title.
All descriptions, photographs, illustrations, and terminology including but not limited to words describing condition (including any condition reports requested by Bidder), authorship, period, culture, source, origin, measurement, quality, rarity, provenance, importance, exhibition, and relevance, used in the catalog, bill of sale, invoice, or anywhere else, represent a good faith effort made by Profiles to fairly represent the lots and property offered for sale as to origin, date, condition, and other information contained therein; they are statements of opinion only. They are not representations or warranties and Bidder agrees and acknowledges that he or she shall not rely on them in determining whether or not to bid or for what price. Price estimates (which are determined well in advance of the auction and are therefore subject to revision) and condition reports are provided solely as a convenience to Bidders and are not intended nor shall they be relied on by Bidders as statements, representations or warranties of actual value or predictions of final bid prices.
This is a standard type of disclaimer, essentially characterizing their evaluation and description of the pieces as to the best of their ability – a “good faith effort” and “opinion only”. They again underscore that these are not warranties.
Bidders are accorded the opportunity to inspect the lots and to otherwise satisfy themselves as to the nature and sufficiency of each lot prior to bidding, and Profiles urges Bidders to avail themselves accordingly.
As with Little John’s Auction Service, they emphasize and encourage that interested buyers should avail themselves of the opportunity to inspect and research the pieces to their own satisfaction.
In summary, per the written guidelines, there does not appear to be any recourse for the buyer with the auction house for items later proven to be inauthentic and/or not as described.
Lots and property are not returnable to Profiles for any reason except under Buyer’s limited Remedies set forth in Section 13 below and under the express terms and conditions of Section 13.
~
13. Buyer’s Remedies. This section sets forth the sole and exclusive remedies of Buyer in conformity with Sections 10 (“Warranties”) and 11 (“Limitation of Damages”) herein, and is expressly in lieu of any other rights or remedies which
might be available to Buyer by law. The Buyer hereby accepts the benefit of the consignor’s warranty of title and any other representations and warranties made by the consignor for the Buyer’s benefit. In the event that Buyer proves in writing
to Profiles’ satisfaction that there was a breach of the consignor’s warranty of title concerning a lot purchased by Buyer, Profiles shall make demand upon the consignor to pay to Buyer the Purchase Price (including any premiums, taxes, or other amounts paid or due to Profiles). Should the consignor not pay the Purchase Price to Buyer within thirty days after such demand, Profiles shall disclose the identity of the consignor to Buyer and assign to Buyer all of Profiles’ rights against
the consignor with respect to such lot or property. Upon such disclosure and assignment, all responsibility and liability, if any, of Profiles with respect to said lot or property shall automatically terminate. Profiles shall be entitled to retain the
premiums and other amounts paid to Profiles – this remedy is as to the consignor only. The rights and remedies provided herein are for the original Buyer only and they may not be assigned or relied upon by any transferee or assignee under
any circumstances. Lots containing ten or more items are not returnable under any circumstances.The exercise of rights under this Section 13 must be made, if at all, within thirty (30) days of the date of sale.
Again, I’m not an attorney, but reading the section above, I would personally interpret this to mean that the only condition under which a buyer can prompt the auction house to take action on a lot is if their is a “breach of the consignor’s warranty of title”, which I take to mean that the original consignor did not have legal right to the possession/ownership of the property.
In this event, the auction house would demand from the consignor, on behalf of the buyer, the purchase price. Should the consignor not comply with this request, the auction house would furnish to the buyer the consignor’s contact information.
Given such a scenario, in regards to title (clear ownership), these rights granted by the auction house are only in effect for 30 days from the date of the sale. And, again, this has nothing to do with circumstances in which an item is proven to be inauthentic, but limited only to clouded title.
In practice, the Profiles in History warranty, in terms of issues of authenticity, doesn’t appear to be materially different from Little John’s Auction Service, in that there is no formal written policy of recourse in the event an item is proven to be inauthentic or improperly attributed in stature or use.
Odyssey Auctions
These are some interesting terms and conditions from an old Odyssey Auctions catalog provided by Rick Spector of Stairway to the Stars:
1. Auction Basics. This is a public auction sale (“Auction Sale”) conducted by licensed and bonded Auctioneers, Odyssey Auctions (hereinafter referred to as “Auctioneer” and at times as “Odyssey”). Bidding in this Auction Sale constitutes acceptance by you (“Bidder”) of all the Terms and Conditions of Auction Sale stated herein. Bidders may include consignors who may bid and purchase lot(s) in the Auction Sale consigned by the consignor or by other consignors pursuant to their consignment agreement with Odyssey (“Consignor” or “Consignors”). A Consignor that bids on their own lots in the Auction Sale may pay a different fee than the buyer’s premium charged to all other buyers. Odyssey reserves the right to include in any auction sale its own material as well as material from affiliated or related companies, principals, officers or employees. Odyssey may have direct or indirect interests in any of the lots in the auction and may collect commissions. THE TWO PRECEEDING SENTENCES SHALL BE DEEMED A PART OF THE DESCRIPTION OF ALL LOTS CONTAINED IN THE CATALOGUE. Pursuant to a separate agreement with Odyssey, Consignors or their agents may be permitted to bid on their own lots in the sale and may receive a rebate commission in whole or part if successful. Where the Consignor has re-purchased a lot and the lot is either returned to the Consignor or otherwise dealt with or disposed of in accordance with the Consignor’s direction, or pursuant to contractual agreement, Odyssey reserves the right to so note the priced realized or to omit a price from the price realized. Odyssey may bid for its own account at any auction. Odyssey may have information about any lot that is not known publicly, and Odyssey reserves the right to use such information, in a manner determined soley by Odyssey and for the benefit of Odyssey, without disclosing such information in the catalog, catalog description or at the auction. Bidder acknowledges and agrees that Odyssey may not be required to pay a Buyer’s Commission, or other charges that other Bidders may be required to pay and may have access to information concerning the lot(s) that is not otherwise available to the public. Any claimed conflict of interest or claimed competitive advantage resulting therefrom is expressly waived by all participants in the Auction Sale. Lot(s) may carry a Reserve. A Reserve is a confidential price or bid below which the Auctioneer will not sell and item or will re-purchase on behalf of the Consignor or for Odyssey.
These are some very interesting conditions for an auction, more than I will comment on as so much speaks for itself. Having said that, and as is the case here, it is unfortunately not unheard of for auction houses to allow consignors of pieces to bid on their own lots (i.e. bidding up the interested parties). Interestingly, as described here, it sounds as though, if a consignor bids up his own lot and wins, that the premium is waived. These described practices seem devised to actually encourage “shill bidding”. Also of note are the self described “conflict[s] of interest” and “competitive advantage” allowed the auction house in terms of disclosing of information and participation in the auction.
Fascinating stuff.
Heritage Auctions
The following is from the Heritage Auction Galleries Terms and Conditions:
MEMORABILIA TERM B: When a memorabilia lot is accompanied by a Certificate of Authenticity (or its equivalent) from an independent third-party authentication provider, Auctioneer does not warrant authenticity of that lot. Bidder shall solely rely upon warranties of the authentication provider issuing the Certificate or opinion.
MEMORABILIA TERM C: Bidders who intend to challenge authenticity or provenance of a lot must notify Auctioneer in writing within thirty-five (35) days of the Auction’s conclusion. Any claim as to provenance or authenticity must be first transmitted to Auctioneer by credible and definitive evidence or the opine of a qualified third party expert and there is no assurance after such presentment that Auctioneer will validate the claim. Authentication is not an exact science and contrary opinions may not be recognized by Auctioneer. Even if Auctioneer agrees with the contrary opinion of such authentication, our liability for reimbursement for such service shall not exceed $500. Provenance and authenticity are guaranteed by neither the consignor nor Auctioneer. While every effort is made to determine provenance and authenticity, it is the responsibility of the Bidder to arrive at their own conclusion prior to bidding.
This is interesting in that, if a COA is assigned from a third party, the Heritage Auctions does not warrant this authentication.
The policy does leave open the possibility of recourse, but with the stipulation that it be initiated within 35 days of the auction, with a position put forth by a third party expert, and with such potential for recourse paired with the caveat that such action is subjective. Most importantly, the general message relayed in summary of these terms is that bidders must do their own research to their own satisfaction prior to the event, as appears to be the case with other auction houses.
Preliminary Conclusion
I hope that the consistent theme conveyed to collectors, regardless of the auction house or specific terms, is that hobbyists need to have confidence in the authenticity and attributes of any piece offered at auction prior to the sale. Of course, I am sure there is some flexibility with auction houses, compared with their boiler plate terms outlined in the catalogs, on a case by case basis. But it comes down to the fact that even in the best case, it would be incumbent upon a buyer with a “bad piece” to definitively prove the piece inauthentic, which can be challenging if the piece was vetted and thought to be good at the front end of the process.
As always, I feel it is important to put the burden on the seller (whether auction house or dealer or individual collector) to prove a piece authentic and original prior to sale that deal with such complications following a transaction.
I plan to draft additional articles on this topic as I find additional terms and conditions to review.
Jason De Bord