Unless contracts state differently-
generally each seller is directly responsible to his buyer.
An auction hose is fully responsible to its buyer.
(unless their contract states differently)
Furthermore one goes to an auction house for certain guarantees.
A bigger auction house should be insured.
On Sep 8, 2009, at 2:00 AM, James Richard wrote:
Rich,
Your understanding/interpretations/opinions of the legal precedents
in a case like this and my own clearly differ. But since neither of
us are lawyers -- and even lawyers can't usually agree what the law
actually says or means in much of the time (which is why we have
juries) -- we best leave off speculating on the legal aspects of
cases that have yet to even come to court. I suppose we'll all see
what comes of it eventually. My primary intent was not to play a
lawyer on the internet, but to point out that there are a lot of
different circumstances which could apply to the various people who
may or may not be involved in this, and that we have precious little
details at this point as to who did/said/repaid or did not repay
what to whom and why.
-- JR
Richard Halegua Comic Art wrote:
Like I said, if someone made a $4,000 commission on a sale of a
$20,000 fake, then at the most that person is ethically obligated
to reimburse only the $4,000 he made on the deal, not the entire
$20,000 that was paid.
And if we table the ethical obligations for a moment, legally, a
court would be unlikely to order the repayment of even the $4,000
commission if the person could demonstrate that they knew nothing
about the poster being fake and sold it "as is" with no warranty.
James
both of these statements are incorrect
if a dealer middled a piece and was the recipient of the cash from
the buyer, then he has a lawful duty to return the full $20,000
unless....
if he was acting only as an agent and he was indemnified (aka
insured, or had a waiver) then he may at that point only be
responsible for the fee he collected and as an agent.
However, the general situation would be different:
"you're looking for a Bride of Haggard card and I know someone who
has one. Your price is $20,000"
though he may be acting as a middleman, the buyer has no direct
access to the original seller and the buyer's recourse is only with
the person who sold him the item.
Further, a lack of knowledge that the item is a forgery does not
shield anyone from the civil aspects of a sale, thought it may
shield the seller from criminal aspects
it's like when you got stopped on a road going 10 miles over the
speed limit: you were speeding and to say to a judge "I was
ignorant of the speed limit on that street" will not shield you
from the fine imposed. Ignorance of the law is not a defense in the
eyes of the law.
federal and state laws do not allow a seller to claim ignorance. If
a card was sold "as an original" and later found to be fake, all
laws remain in effect. The seller is directly responsible to the
buyer regardless of his position as an honest person
If I buy a forgery and sell it, the buyer has legal recourse
against me. I in turn have legal recourse against the person who
sold me the item. That seller has legal recourse against their
source etc all the way down the line until you have the person who
bought directly from Haggard or Mendez and whom has a legal and
criminal case against such persons for fraud, conspiracy etc.
Ron Magid did one deal with Kerry Haggard and so he has a case
against Haggard. He did not sue Jaime because they would have to
prove Jaime had some knowledge that Magid was being defrauded.
However, in Gresham's case, because the fraud was over an extended
period of time, it can be presumed that Jaime may have known that
Jim was being defrauded and did not speak up, thereby ending the
fraud upon discovery and that's why Gresham is able to name Mendez
in his lawsuit.
I expect that if anything I said was incorrect or misleading that
Sean will correct my text
Rich
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