This dispute concerned the description of an item sold at auction.
The Buyer placed a bid via telephone for a ‘Chinese resinous libation cup’ which became the winning bid. The Buyer’s winning bid was a total of £5,500 plus sales premiums and VAT, coming to an overall cost of £7,117.
A few days later when the Buyer received the item, he contacted the auctioneer as he noticed the item was not as described. The Buyer explained that the item was made of plastic and contained horsehair within, adding that these details were not disclosed by the auctioneer. The Buyer felt that the photographs taken of the item were not an accurate portrayal and as they had been taken in poor light, did not show the presence of the horsehair in the item. The Buyer requested a refund for the price he had paid as they felt it had been misdescribed.
The Auctioneer refused to take the item back as they did not agree that they had misdescribed it. The Auctioneer said that they had described it as resinous and that if the item was made of plastic, then their description would have still been accurate as plastic is a resinous material.
When considering this complaint the adjudicator looked at it in three parts, these being:
- The item’s pre-auction description
- The right to a refund under consumer law
The adjudicator considered the Rules of Conduct of the National Association of Valuers and Auctioneers, which are generally accepted as good practice in the industry. Within these rules there is an obligation for auctioneers not to provide misleading information or omit material information. On this basis, the adjudicator outlined they would have expected the auctioneer to accurately describe the item, with no material omissions which may have impacted the average consumers transactional decision.
Within a previous auction listing, the auctioneer had listed the item as ‘A Chinese wooden libation cup with naturalistic carved floral decoration’ and updated this for another auction a month later to ‘A Chinese resinous libation cup, with naturalistic floral decoration’. However, they did not update the condition report which still described the item as being made from wood and not stating there was hair in the resin. It was also noted that the auctioneer did not state an estimated value in the listing, that there was no reserve price, a low starting price, and that the Item was not entered in a specialist Asian art auction.
The adjudicator undertook some research which revealed that Chinese libation cups made of rhino horn have fetched very high prices at auction. The Buyer’s cup was of a similar appearance to the valuable examples in that it followed the same basic design and featured intricate carvings. Given the similarity in appearance and the inclusion of hair in the resin to give a fibrous effect, the adjudicator considered that it was reasonable to conclude that the Buyer’s cup may have been a reproduction of these far more valuable examples and worth significantly less.
As the professional, the auctioneer was expected to have been aware that the item was similar in appearance to very valuable rhino-horn cups. As such, in view of the risk that consumers might have been confused or misled into thinking that the Item was in fact a valuable rhino horn cup, it was important that the auctioneer was very clear about the item’s description.
The adjudicator was critical of the auctioneer for incorrectly describing the material the item was made of in the condition report, but concluded that these shortcomings did not reasonably give the impression the item was made from rhino horn. The adjudicator concluded that the there was a lack of clarity in these descriptions and, therefore, the auctioneer had not met their obligations to describe the item accurately and to include all material information.
Regarding the auctioneer’s communication, this specifically referred to the Buyer’s communications surrounding the item he had received. In considering the contemporaneous records, the adjudicator identified that the auctioneer had responded to the Buyer’s communication. Whilst it was acknowledged that the response had not been what the Buyer was looking for, the adjudicator found that, on balance, the auctioneer’s communication was satisfactory.
Finally, the adjudicator explained that it was not TPO’s role to make a legal determination on whether the Buyer was entitled a right to a refund under consumer law, but did advise the Buyer that publicly accessible advice is that the right to cancel does not apply to items sold at a public auction where bidders can choose either to attend in person or bid through the website.
The adjudicator accepted that the inconsistent descriptions may have had an impact on the Buyer’s decision whether to bid, and up to what level. However, in determining whether an award of compensation was warranted, the adjudicator also took into account that the Item was available for physical inspection, and that if there was any doubt about any aspect of the item, the Buyer could have consulted the auctioneer before the auction. Furthermore, it was explained that it would have been prudent for the Buyer to make such checks if there was any doubt, particularly before considering whether to bid to such a high level. The adjudicator concluded that the Buyer had the opportunity to mitigate his risk and therefore did not consider that compensation equal to the value of the item was warranted. However, an award of £250 was made in relation to the distress and aggravation caused as a result of the Auctioneer’s inconsistent descriptions.