Going once, going twice, sold?! Buying at an art auction – Art & Law Journal – by Schelstraete 2019/02

The establishment of the sale and purchase agreement. The auctioneer on an art auction always hits the hammer to confirm the highest bid. In 2010 this old custom was subject of discussion at the Court in Amsterdam. An Antiquarian and an Auction from Amsterdam could not agree with each other on the moment the sale and purchase agreement was established.

The facts were as follows. The Antiquarian is a business who has its activities in the sale, purchase, taxation and restoration of art pieces and antique. On 10 June 2009 the Auction from Amsterdam organized an auction on a collection of art. Bidding could be in four ways: in writing before the auction, directly in the auction room, by phone or via internet.

The Antiquarian was interested in the painted called “Reclining Nude” and bid € 12.000 at the auction. After a few seconds no higher bid followed so the auctioneer called the bidding number and hit the hammer. But at that exact same moment a bid of € 13.000 followed via internet.

The Antiquarian was of the impression he bought the painting. Until he recognized the auction of the painting continued.

After protest of the Antiquarian he bid € 14.000. Again a higher bid followed after which the Antiquarian finally bid € 18.000. The auctioneer hit the hammer.

Eventually the Antiquarian was of the opinion that the sale and purchase agreement established at the hit of the hammer at € 12.000 because in the terms and conditions of the auction is stated that no new bid can follow after hitting the hammer. The highest bid will then be accepted.

The Court agreed with this and declared the sale and purchase agreement established at the hit of the hammer at € 12.000. The Antiquarian however lost his right on performance of the sale and purchase by continuing the bidding. He conclude a new agreement for the painting of € 18.000.

In short, a sale and purchase agreement on an art auction normally establishes when the auctioneer hits the hammer. You can find the complete verdict on ECLI:NL:RBAMS:2010:BP9000 (only Dutch).

Please don’t hesitate to contact via or via +31 (0)13 511 44 20 should you have questions or an similar dispute.

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