rydal
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Buying/Selling art - Some Legal Issues Involved, by rydal on Nov 29, 2007 14:25:27 GMT 1, Hi DM&P
Not quite, your consumer rights can be excluded where you are able to attend the auction in person if you so wish. If you could attend, but choose not to do so by bidding online or via the telephone your rights can still be excluded as you could have gone if you wanted to.
The exact wording is in S.12(2)(a) of the Unfair Contract Terms Act 1977 which reads:
"(2) But the buyer is not in any circumstances to be regarded as dealing as consumerโ
(a)if he is an individual and the goods are second hand goods sold at public auction at which individuals have the opportunity of attending the sale in person"
Hope that clears it up.
Hi DM&P
Not quite, your consumer rights can be excluded where you are able to attend the auction in person if you so wish. If you could attend, but choose not to do so by bidding online or via the telephone your rights can still be excluded as you could have gone if you wanted to.
The exact wording is in S.12(2)(a) of the Unfair Contract Terms Act 1977 which reads:
"(2) But the buyer is not in any circumstances to be regarded as dealing as consumerโ
(a)if he is an individual and the goods are second hand goods sold at public auction at which individuals have the opportunity of attending the sale in person"
Hope that clears it up.
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rydal
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Posts โข 109
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October 2006
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Buying/Selling art - Some Legal Issues Involved, by rydal on Nov 29, 2007 13:31:21 GMT 1, In response to a couple of requests on the Bloomsbury Auction thread I have tried to put together some information on the legal issues involved in print buying problems and dodgy dealings.
I tried to make this simple and interesting, I failed. Whilst I hope some of you find this interesting (Iโve tried to apply it to the art world wherever possible) I admit itโs not always simple but thatโs because the subject matter isnโt simple and thereโs no point in me trying to make out that it is.
I apologise for the length but hope that at least a few of you find it useful.
Is there any added protection when buying from an auction?
Firstly a sale by auction will not be a consumer deal for the purposes of the Unfair Contract Terms Act 1977. Therefore any contractual terms removing consumersโ usual rights under the Sales of Goods Act (satisfactory quality, fit for purpose, as described etc) will normally be effective so expect the auction house to exclude liability for everything and assume that exclusion to be valid.
Note however that consumer rights can only be excluded where there is the opportunity to attend the auction personally, although it doesnโt matter whether you did actually attend in person or not.
There are 3 distinct contracts in an auction sale:
(1) Between the seller (owner) and the highest bidder (buyer) (2) Between the owner and the auctioneer (3) Between the auctioneer and the buyer
Dealing with the last one first it is important to note that the auctioneer does not warrant (ie promise) that the seller is the legal owner of the goods provided the buyer knows that the goods do not belong to the auctioneer. The closest you get to this is that the auctioneer promises that he knows of no defect in the sellerโs legal title. So if your Banksy bought at auction turns out to be nicked donโt assume you can blame the auctioneers.
The auctioneer does however promise that he has authority to sell so if you win an item at auction and the seller then turns around and says the auctioneer had no right to sell that item, you will have a potential claim against the auctioneer (but you will still not receive the print from the โinnocentโ seller).
In reality the fact that almost all exclusion clauses will be effective (and inevitably will be present) and the limited nature of any implied warranties given by the auctioneer means that when things go wrong you will normally be left to fight it out with the seller โ donโt expect any assistance from the auction house.
Be aware that e-bay is not an auction in the legal sense. I believe that there are various reasons for this but primarily it is because the sale comes to an end through the elapse of time rather than because nobody is prepared to bid higher. As a result the Sale of Goods Act and the Distance Selling Regulations will apply to most e-bay sales provided you are buying as a consumer from a business seller. The Distance Selling Regs do not apply to contracts concluded at auctions.
The Law of Mistake.
Most people have a basic understanding of the Sale of Goods Act and of the principles of offer and acceptance but when dealing with authenticity issues or more general dodgy dealings almost inevitably the law of mistake will come into play. This is a very complex area and one that most lay people do not appreciate. I think this is partly because consumer websites like the CAB or Consumerdirect steer well clear due to its complexity and secondly because with such a simple sounding name people assume it canโt be that complicated.
The basic issue here is whether the buyer can โescapeโ from an unfavourable contract on the basis of mistake.
There are several different sub-categories of mistake, some are more likely to arise in the context of art sales than others but it may be useful to briefly go through the main ones:
Mistake as to Quality or Subject Matter
This is the one that concerns authenticity and assumes that both the buyer and the seller mistakenly believe the item to be genuine. Generally if you buy a Banksy that both you and the seller believe to be authentic but it turns out to not to be the contract will be valid. This happened with a Constable painting in Leaf โv- International Galleries and the buyer was stuck with it. You are deemed to have agreed to purchase that physical item regardless of its true quality.
Despite this you may be able to argue that you actually bought something so fundamentally different to what you believed you were buying that the contract ought to be void for mistake as to subject matter. In Nicholson & Venn โv- Smith Marriott the buyer bought table napkins described as having been owned by Charles I, however they turned out to be Georgian and worth much less. In this case it was suggested that the contract could have been declared void however for various reasons it was unnecessary for the court to decide whether it actually was.
There is a very fine distinction, if any, between these two scenarios but still we have two different outcomes. This is recognised as the most difficult part of the law of mistake.
The real distinction lies in the difference between a mistake as to substance and a mistake as to quality but this is a very, very fine distinction as the two are often inextricably intertwined โ are you buying your Banksy print for the image, in which case the true identity of the artist is irrelevant, you have the print you agreed to buy and the reduced โqualityโ of the print if it turns out to be a Pranksy will not allow you to escape the contract, or are you buying โa Banksyโ and if it is not by Banksy then it is something fundamentally different to what you believed, ie a mistake as to the actual substance or subject matter of the contract, that may allow you to escape the deal. A very fine line and one which will ultimately be decided on a case by case basis depending on the evidence given by the parties.
Mutual Mistake
This one is fairly simply to explain: I have previously visited your house and admired your Grin Reaper on the wall. One day you offer to sell me your โBanksyโ for ยฃ4000 and I agree. I have assumed you are talking about the Grin Reaper but unknown to me, you also have an unframed Flags under your bed and it is this print that you are offering to sell. Obviously I donโt really want to be held to having to buy your Flags for ยฃ4,000!!
In this case it will be easy for me to escape, you thought the agreement was for one thing, I thought it was for another. There was never a true meeting of minds as a result of our respective assumptions and this is mutual mistake.
Operative Mistake
Remember the Tesco X-Box thread? Tescoโs mistakenly listed X-boxes for sale on their website for ยฃ36 โ once orders had been accepted were they obliged to honour the deal?
The general rule is that โA seller who, as a result of some miscalculation, offers goods at a price lower than that which he would have asked but for the mistake cannot, after the offer has been accepted generally rely on the mistake to make the contract voidโ
However, this principle has been tempered through the development of case law which now ensures that a mistake as to the terms of the contract, if known to the other party, may avoid the contract. There has been uncertainty as to whether the mistake must actually be known to the other party or whether it is enough that it ought to have been apparent to any reasonable man. It is now pretty well resolved that the latter is correct, for example in Hartog โv- Colin & Shields the sellers escaped from a contract in which they had mistakenly agreed a price per pound when it should have been per piece. It was decided that the buyers must have realised the sellersโ error and the contract was declared void.
Mistake as to Identity
This is less relevant than it used to be as people become more aware of the potential for fraud but it can become an issue in several circumstances. For example, lets say you are approached by an individual named David Smith who says that he represents a reputable gallery that you have heard of, who says he would like to pay ยฃ5,000 for your Banksy. Maybe you even call the gallery who confirm that David Smith works there. On this basis you sell him your print but it then transpires that the cash/cheque is fake and that the buyer was in fact a rogue fraudulently purporting to be David Smith. Only being in it for the money he has very quickly sold on your Banksy to an innocent seller โ he is long gone but can you recover your print from its new owner?
The answer is that you may well be able to on the basis of mistake as to identity in that you intended to deal only with the reputable gallery and not with the rogue. As the contract is void, no title will have passed to the rogue and so he was unable to pass title to the innocent buyer who would have to return it to you. They would be left to pursue the dishonest seller.
Sounds simple enough but now consider a very similar situation where you meet another David Smith who has told you he is a wealthy art collector and again would like to buy your Banksy. The money is handed over personally and again turns out to be fake and โDavid Smithโ an assumed identity. Is the contract void as in the previous situation?
Almost certainly not. Although you thought you were dealing with David Smith when actually you were not this is probably not a mistake as to identity. The courts are likely to conclude that you intended to contract with the person stood in front of you whatever his name may be. The only mistake is to that personโs honesty or credit-worthiness, not his identity.
On the face of it there is little difference between these two scenarios but probably a very different outcome for you as a seller. The crucial question is whether the mistake is to the buyersโ actual identity (second scenario) or to the capacity in which buyer deals (first scenario)
The above scenarios assume a face-to-face transaction and these days many sales will be online. Recently after BLKMRTโs decision to only permit those on a particular list to buy an Ian Francis, several members queried whether the gallery could refuse to supply the pieces to buyers whose orders were accepted despite not being on the list. At the time I suggested that (under UK law anyway) they may be able to escape those contracts on the basis of mistake as to identity ie they only intended to deal with those that had been on the list. In order to rely on this argument they would have to show that:
(1) The identity of the other party must be of crucial importance (here it may well have been as they went to the time and trouble of selecting those to be e-mailed)
(2) The mistaken party must have in mind an identifiable person with whom he or she intends to contract (ie only the named individuals who had been e-mailed)
(3) The other party must be aware of the mistake (which they would have been since they would have had to have obtained the log in details from an alternative source)
There are in fact other forms of mistake in addition to the above but these are the most relevant and the others are simply too specialist to get bogged down with.
Misrepresentation
Needless to say any description that is applied to an item must be true. If it is not and you proceed with the contract in reliance on that misrepresentation then you will be entitled to escape the contract and/or receive damages. Again this is more complicated than you may imagine with misrepresentations being either fraudulent, negligent or innocent but I think weโll leave that for another time!!
Sale of Goods Act
I haven't dealt with this here as I think most of you have a pretty good understanding of the basic but if anybody would like me to do so I'm happy to.
If nothing else, I hope this helps you all appreciate that there is more to contract law than the CAB website would have you believe - no disrespect to the CAB intended, they do a great job.
In response to a couple of requests on the Bloomsbury Auction thread I have tried to put together some information on the legal issues involved in print buying problems and dodgy dealings. I tried to make this simple and interesting, I failed. Whilst I hope some of you find this interesting (Iโve tried to apply it to the art world wherever possible) I admit itโs not always simple but thatโs because the subject matter isnโt simple and thereโs no point in me trying to make out that it is. I apologise for the length but hope that at least a few of you find it useful. Is there any added protection when buying from an auction?Firstly a sale by auction will not be a consumer deal for the purposes of the Unfair Contract Terms Act 1977. Therefore any contractual terms removing consumersโ usual rights under the Sales of Goods Act (satisfactory quality, fit for purpose, as described etc) will normally be effective so expect the auction house to exclude liability for everything and assume that exclusion to be valid. Note however that consumer rights can only be excluded where there is the opportunity to attend the auction personally, although it doesnโt matter whether you did actually attend in person or not. There are 3 distinct contracts in an auction sale: (1) Between the seller (owner) and the highest bidder (buyer) (2) Between the owner and the auctioneer (3) Between the auctioneer and the buyer Dealing with the last one first it is important to note that the auctioneer does not warrant (ie promise) that the seller is the legal owner of the goods provided the buyer knows that the goods do not belong to the auctioneer. The closest you get to this is that the auctioneer promises that he knows of no defect in the sellerโs legal title. So if your Banksy bought at auction turns out to be nicked donโt assume you can blame the auctioneers. The auctioneer does however promise that he has authority to sell so if you win an item at auction and the seller then turns around and says the auctioneer had no right to sell that item, you will have a potential claim against the auctioneer (but you will still not receive the print from the โinnocentโ seller). In reality the fact that almost all exclusion clauses will be effective (and inevitably will be present) and the limited nature of any implied warranties given by the auctioneer means that when things go wrong you will normally be left to fight it out with the seller โ donโt expect any assistance from the auction house. Be aware that e-bay is not an auction in the legal sense. I believe that there are various reasons for this but primarily it is because the sale comes to an end through the elapse of time rather than because nobody is prepared to bid higher. As a result the Sale of Goods Act and the Distance Selling Regulations will apply to most e-bay sales provided you are buying as a consumer from a business seller. The Distance Selling Regs do not apply to contracts concluded at auctions. The Law of Mistake. Most people have a basic understanding of the Sale of Goods Act and of the principles of offer and acceptance but when dealing with authenticity issues or more general dodgy dealings almost inevitably the law of mistake will come into play. This is a very complex area and one that most lay people do not appreciate. I think this is partly because consumer websites like the CAB or Consumerdirect steer well clear due to its complexity and secondly because with such a simple sounding name people assume it canโt be that complicated. The basic issue here is whether the buyer can โescapeโ from an unfavourable contract on the basis of mistake. There are several different sub-categories of mistake, some are more likely to arise in the context of art sales than others but it may be useful to briefly go through the main ones: Mistake as to Quality or Subject MatterThis is the one that concerns authenticity and assumes that both the buyer and the seller mistakenly believe the item to be genuine. Generally if you buy a Banksy that both you and the seller believe to be authentic but it turns out to not to be the contract will be valid. This happened with a Constable painting in Leaf โv- International Galleries and the buyer was stuck with it. You are deemed to have agreed to purchase that physical item regardless of its true quality. Despite this you may be able to argue that you actually bought something so fundamentally different to what you believed you were buying that the contract ought to be void for mistake as to subject matter. In Nicholson & Venn โv- Smith Marriott the buyer bought table napkins described as having been owned by Charles I, however they turned out to be Georgian and worth much less. In this case it was suggested that the contract could have been declared void however for various reasons it was unnecessary for the court to decide whether it actually was. There is a very fine distinction, if any, between these two scenarios but still we have two different outcomes. This is recognised as the most difficult part of the law of mistake. The real distinction lies in the difference between a mistake as to substance and a mistake as to quality but this is a very, very fine distinction as the two are often inextricably intertwined โ are you buying your Banksy print for the image, in which case the true identity of the artist is irrelevant, you have the print you agreed to buy and the reduced โqualityโ of the print if it turns out to be a Pranksy will not allow you to escape the contract, or are you buying โa Banksyโ and if it is not by Banksy then it is something fundamentally different to what you believed, ie a mistake as to the actual substance or subject matter of the contract, that may allow you to escape the deal. A very fine line and one which will ultimately be decided on a case by case basis depending on the evidence given by the parties. Mutual MistakeThis one is fairly simply to explain: I have previously visited your house and admired your Grin Reaper on the wall. One day you offer to sell me your โBanksyโ for ยฃ4000 and I agree. I have assumed you are talking about the Grin Reaper but unknown to me, you also have an unframed Flags under your bed and it is this print that you are offering to sell. Obviously I donโt really want to be held to having to buy your Flags for ยฃ4,000!! In this case it will be easy for me to escape, you thought the agreement was for one thing, I thought it was for another. There was never a true meeting of minds as a result of our respective assumptions and this is mutual mistake. Operative MistakeRemember the Tesco X-Box thread? Tescoโs mistakenly listed X-boxes for sale on their website for ยฃ36 โ once orders had been accepted were they obliged to honour the deal? The general rule is that โA seller who, as a result of some miscalculation, offers goods at a price lower than that which he would have asked but for the mistake cannot, after the offer has been accepted generally rely on the mistake to make the contract voidโ However, this principle has been tempered through the development of case law which now ensures that a mistake as to the terms of the contract, if known to the other party, may avoid the contract. There has been uncertainty as to whether the mistake must actually be known to the other party or whether it is enough that it ought to have been apparent to any reasonable man. It is now pretty well resolved that the latter is correct, for example in Hartog โv- Colin & Shields the sellers escaped from a contract in which they had mistakenly agreed a price per pound when it should have been per piece. It was decided that the buyers must have realised the sellersโ error and the contract was declared void. Mistake as to IdentityThis is less relevant than it used to be as people become more aware of the potential for fraud but it can become an issue in several circumstances. For example, lets say you are approached by an individual named David Smith who says that he represents a reputable gallery that you have heard of, who says he would like to pay ยฃ5,000 for your Banksy. Maybe you even call the gallery who confirm that David Smith works there. On this basis you sell him your print but it then transpires that the cash/cheque is fake and that the buyer was in fact a rogue fraudulently purporting to be David Smith. Only being in it for the money he has very quickly sold on your Banksy to an innocent seller โ he is long gone but can you recover your print from its new owner? The answer is that you may well be able to on the basis of mistake as to identity in that you intended to deal only with the reputable gallery and not with the rogue. As the contract is void, no title will have passed to the rogue and so he was unable to pass title to the innocent buyer who would have to return it to you. They would be left to pursue the dishonest seller. Sounds simple enough but now consider a very similar situation where you meet another David Smith who has told you he is a wealthy art collector and again would like to buy your Banksy. The money is handed over personally and again turns out to be fake and โDavid Smithโ an assumed identity. Is the contract void as in the previous situation? Almost certainly not. Although you thought you were dealing with David Smith when actually you were not this is probably not a mistake as to identity. The courts are likely to conclude that you intended to contract with the person stood in front of you whatever his name may be. The only mistake is to that personโs honesty or credit-worthiness, not his identity. On the face of it there is little difference between these two scenarios but probably a very different outcome for you as a seller. The crucial question is whether the mistake is to the buyersโ actual identity (second scenario) or to the capacity in which buyer deals (first scenario) The above scenarios assume a face-to-face transaction and these days many sales will be online. Recently after BLKMRTโs decision to only permit those on a particular list to buy an Ian Francis, several members queried whether the gallery could refuse to supply the pieces to buyers whose orders were accepted despite not being on the list. At the time I suggested that (under UK law anyway) they may be able to escape those contracts on the basis of mistake as to identity ie they only intended to deal with those that had been on the list. In order to rely on this argument they would have to show that: (1) The identity of the other party must be of crucial importance (here it may well have been as they went to the time and trouble of selecting those to be e-mailed) (2) The mistaken party must have in mind an identifiable person with whom he or she intends to contract (ie only the named individuals who had been e-mailed) (3) The other party must be aware of the mistake (which they would have been since they would have had to have obtained the log in details from an alternative source) There are in fact other forms of mistake in addition to the above but these are the most relevant and the others are simply too specialist to get bogged down with. MisrepresentationNeedless to say any description that is applied to an item must be true. If it is not and you proceed with the contract in reliance on that misrepresentation then you will be entitled to escape the contract and/or receive damages. Again this is more complicated than you may imagine with misrepresentations being either fraudulent, negligent or innocent but I think weโll leave that for another time!! Sale of Goods ActI haven't dealt with this here as I think most of you have a pretty good understanding of the basic but if anybody would like me to do so I'm happy to. If nothing else, I hope this helps you all appreciate that there is more to contract law than the CAB website would have you believe - no disrespect to the CAB intended, they do a great job.
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rydal
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October 2006
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rydal
New Member
Posts โข 109
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October 2006
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Wii Wii
Nov 20, 2007 12:12:46 GMT 1
Wii Wii, by rydal on Nov 20, 2007 12:12:46 GMT 1, Try a "Game" store but one inside a larger department store. They will accept reservations provided you are able to collect on the day they phone you to say it is in. I reserved one from Game inside Debenhams and got it the very next day - seems people forget about the small concessions inside larger stores.
Try a "Game" store but one inside a larger department store. They will accept reservations provided you are able to collect on the day they phone you to say it is in. I reserved one from Game inside Debenhams and got it the very next day - seems people forget about the small concessions inside larger stores.
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rydal
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Snow is falling, by rydal on Nov 14, 2007 19:41:14 GMT 1, Here is my place in Bansko in early October;
Here it is a few days ago!!
Bansko is not as cheap as it was but ยฃ65k should still get you a decent sized 1 bed near to the gondola with good facilities (pool, spa, gym, ski locker etc). Loads on investment going into the infrastructure and mountain (2 new pistes opening this season) and easy jet has just starting flying to Sofia. Prices are rising on paper but still lots of new apartments going up, location is everything. Also has an Ian Woosnam designed golf course nearing completion and some breathtaking scenery. Overall, I'm very happy with my place. Oh and 80p a pint!!
Here is my place in Bansko in early October; Here it is a few days ago!! Bansko is not as cheap as it was but ยฃ65k should still get you a decent sized 1 bed near to the gondola with good facilities (pool, spa, gym, ski locker etc). Loads on investment going into the infrastructure and mountain (2 new pistes opening this season) and easy jet has just starting flying to Sofia. Prices are rising on paper but still lots of new apartments going up, location is everything. Also has an Ian Woosnam designed golf course nearing completion and some breathtaking scenery. Overall, I'm very happy with my place. Oh and 80p a pint!!
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rydal
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Snow is falling, by rydal on Nov 14, 2007 9:13:18 GMT 1, Oh yes, I have an apartment in Bansko which has the 3rd highest snowfall forecast for next week, can't wait to get out there!!
Oh yes, I have an apartment in Bansko which has the 3rd highest snowfall forecast for next week, can't wait to get out there!!
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rydal
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SMALL BIRD TOLD BONGO, by rydal on Nov 14, 2007 0:01:50 GMT 1, Wow, I'm feeling the love tonight!!! Thanks for all your kind words everybody, much appreciated.
Wow, I'm feeling the love tonight!!! Thanks for all your kind words everybody, much appreciated.
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rydal
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SMALL BIRD TOLD BONGO, by rydal on Nov 13, 2007 23:35:54 GMT 1, Already dealt with that a few days ago Danvnuk, not good news I'm afraid:
"Good try guys but Tesco's will not be obliged to honour these purchases and I doubt very much they will chose to do so as a gesture of goodwill. Regardless of their terms and conditions and principles of offer and acceptance they will be able to void the contracts on the basis of "operative mistake". Previous cases have involved Argos selling TV's (which they didn't honour) and Kodak selling cameras online (which they did honour but only because the deal was just about believable, given that the page was covered in "Special Deal" type promotions etc)."
Basically if a retailer makes a mistake they will generally have to honour it UNLESS the buyers ought reasonably to have realised it was a mistake, in which case the contract will be void. Obviously therefore the question is whether the reasonable consumer should have realised the deal was too good to be true. In this case I'm confident a court would conclude they should have. Sorry!
Already dealt with that a few days ago Danvnuk, not good news I'm afraid:
"Good try guys but Tesco's will not be obliged to honour these purchases and I doubt very much they will chose to do so as a gesture of goodwill. Regardless of their terms and conditions and principles of offer and acceptance they will be able to void the contracts on the basis of "operative mistake". Previous cases have involved Argos selling TV's (which they didn't honour) and Kodak selling cameras online (which they did honour but only because the deal was just about believable, given that the page was covered in "Special Deal" type promotions etc)."
Basically if a retailer makes a mistake they will generally have to honour it UNLESS the buyers ought reasonably to have realised it was a mistake, in which case the contract will be void. Obviously therefore the question is whether the reasonable consumer should have realised the deal was too good to be true. In this case I'm confident a court would conclude they should have. Sorry!
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rydal
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SMALL BIRD TOLD BONGO, by rydal on Nov 13, 2007 23:07:46 GMT 1, You're welcome, I'm always happy to help with any legal queries you guys may have. I don't caim to know everything but my contract stuff is pretty good and I should at least be able to separate fact from fiction and point you in the right direction.
You're welcome, I'm always happy to help with any legal queries you guys may have. I don't caim to know everything but my contract stuff is pretty good and I should at least be able to separate fact from fiction and point you in the right direction.
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rydal
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SMALL BIRD TOLD BONGO, by rydal on Nov 13, 2007 22:01:35 GMT 1, Exactly - if you want to retain an element of control over the goods they would have to lease the prints to us!!
I don't believe that in ordinary consumer contracts it would generally be permissable to insert a clause preventing resale within a specified period. Of course this can be done in the context of property contracts however these covenants are specifically designed to protect the interests of third parties ie neighbours, or the seller who may still be very nearby in the event that they have sold off part of their garden. Also property contracts are negotiated individually and are not "standard form" contracts that apply equally to every buyer. I can't see the same type of restrictions on use being justifiable in the case of most ordinary consumer contracts - unfortunately I don't think protecting the interests of genuine art fans would stand up although you never know!
Exactly - if you want to retain an element of control over the goods they would have to lease the prints to us!!
I don't believe that in ordinary consumer contracts it would generally be permissable to insert a clause preventing resale within a specified period. Of course this can be done in the context of property contracts however these covenants are specifically designed to protect the interests of third parties ie neighbours, or the seller who may still be very nearby in the event that they have sold off part of their garden. Also property contracts are negotiated individually and are not "standard form" contracts that apply equally to every buyer. I can't see the same type of restrictions on use being justifiable in the case of most ordinary consumer contracts - unfortunately I don't think protecting the interests of genuine art fans would stand up although you never know!
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rydal
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SMALL BIRD TOLD BONGO, by rydal on Nov 13, 2007 21:13:42 GMT 1, Oh, and you are all correct you cannot sell what you don't own but the e-bay sellers are not actually selling the print, they are entering into a contract agreeing to send the print on to the e-bay buyer when it is received. They should be making the deals conditional upon them actually receiving the print otherwise they could be in trouble if it never arrives however legally they are entitled to do this.
Oh, and you are all correct you cannot sell what you don't own but the e-bay sellers are not actually selling the print, they are entering into a contract agreeing to send the print on to the e-bay buyer when it is received. They should be making the deals conditional upon them actually receiving the print otherwise they could be in trouble if it never arrives however legally they are entitled to do this.
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rydal
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SMALL BIRD TOLD BONGO, by rydal on Nov 13, 2007 21:05:29 GMT 1, Sorry. missed the Data Protection and Freedom of Information Act points. The DPA would not prevent POW seeking out information as it only applies to the body holding the information and not the one looking for it. However, having found it they would then become the holders of that information (the data controller) and would have to disclose it upon request to the "data subject" ie you. The FOIA would not apply to POW as a private company.
Sorry. missed the Data Protection and Freedom of Information Act points. The DPA would not prevent POW seeking out information as it only applies to the body holding the information and not the one looking for it. However, having found it they would then become the holders of that information (the data controller) and would have to disclose it upon request to the "data subject" ie you. The FOIA would not apply to POW as a private company.
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rydal
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October 2006
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SMALL BIRD TOLD BONGO, by rydal on Nov 13, 2007 20:56:40 GMT 1, Guys, without intending any disrepect to anybody it is important to realise that there is so much more to contract law than offer and acceptance. The point has been made that ownership is distinct from possession (and indeed risk) which is correct. Normally ownership passes when the parties intend it to. Generally this is extremely unhelpful as the seller is only interested in when he gets paid and the buyer only interested in when he gets possession, as such these two factors are normally considered but nobody bothers to stop and consider when legal ownership transfers. As risk passes with ownership this can be vital when goods are damaged in transit or whilst in a warehouse awaiting dispatch; are they still the seller's property as they have not been delivered to the buyer or are they the buyer's property as he has made payment for them? This can be a vital and often very difficult question to answer when the contracts are not as well drafted as they should be.
However, whilst this can be a big problem in commercial contracts private buyers are helped out by consumer legislation. S.20(4) of the Sale of Goods Act ensures that where the buyer acts as a consumer property (ie ownership) does not pass until safe delivery to the buyer. As such legal ownership in the print remains with POW until it is delivered to you. If it did not then you would have no legal right of complaint if it arrived damaged as it would have been at your risk during transit.
However, just because they retain ownership until delivery does not mean that they are not legally obliged to deliver the goods to you. This is the real question here - once you have made your payment and this has been accepted, are they obliged to send the print to you or can they rely on the term that says they can refund for any reason prior to dispatch? I'm not convinced that they could rely on this clause, it flies in the face of the general principle that you cannot seek to control what somebody can do with the goods once they are delivered. Whilst ethically I totally agree with POW's intentions, legally you either sell the prints or you don't - you can't sell them and then seek to restrict what the buyer can do with them. If this is the main aim of this clause (which I guess is arguable) then I have a suspicion that it would not be upheld as it may constitute an unfair contract term. However the beauty of the law is that there is never any right or wrong answer - I argue, I submit, I contend and I suggest but I would never be so bold as to state!! When I win I'm brilliant and when I lose the Judge is an idiot that ought to know better.
POW would of course be perfectly within their rights to blacklist those flippers and refuse them any further purchases - however with payments being automated it would be very difficult for POW to filter out the blacklisted buyers before payment was taken - to get around this POW would need to inform relevant flippers that they are barred from future purchase so that in the event they ignore the ban and manage to get their order accepted POW would be able to escape the contract on the basis of mistake as to identity regardless of offer/acceptance and regardless of the wording of the T&Cs.
Sorry this turned into a longwinded essay, I got carried away. Main message is that if I were POW I would happily use the term to point those buyers to whom I wanted to refund but would I want to rely on it 100% when the chips are down? - No. As a seller of goods I have to accept that I have no right to dicate to buyers what they can and can't do with the goods I sell them and that any clause that tries to achieve this is open to challenge.
Having said that POW have my full support in their anti-flipper policies but ethics and the law are very different things.
You can all wake up now!
EDIT: (a) I don't see that the Distance Selling Regs have any relevance to this particular question (b) Don't assume that just because something is stated "officially" in T&Cs or elsewhere that it will necessarily stand up - how many times have you seen a notice saying "We accept no responsibility for injuries etc" - totally meaningless and simply put up as a deterant to would be claimants.
Guys, without intending any disrepect to anybody it is important to realise that there is so much more to contract law than offer and acceptance. The point has been made that ownership is distinct from possession (and indeed risk) which is correct. Normally ownership passes when the parties intend it to. Generally this is extremely unhelpful as the seller is only interested in when he gets paid and the buyer only interested in when he gets possession, as such these two factors are normally considered but nobody bothers to stop and consider when legal ownership transfers. As risk passes with ownership this can be vital when goods are damaged in transit or whilst in a warehouse awaiting dispatch; are they still the seller's property as they have not been delivered to the buyer or are they the buyer's property as he has made payment for them? This can be a vital and often very difficult question to answer when the contracts are not as well drafted as they should be.
However, whilst this can be a big problem in commercial contracts private buyers are helped out by consumer legislation. S.20(4) of the Sale of Goods Act ensures that where the buyer acts as a consumer property (ie ownership) does not pass until safe delivery to the buyer. As such legal ownership in the print remains with POW until it is delivered to you. If it did not then you would have no legal right of complaint if it arrived damaged as it would have been at your risk during transit.
However, just because they retain ownership until delivery does not mean that they are not legally obliged to deliver the goods to you. This is the real question here - once you have made your payment and this has been accepted, are they obliged to send the print to you or can they rely on the term that says they can refund for any reason prior to dispatch? I'm not convinced that they could rely on this clause, it flies in the face of the general principle that you cannot seek to control what somebody can do with the goods once they are delivered. Whilst ethically I totally agree with POW's intentions, legally you either sell the prints or you don't - you can't sell them and then seek to restrict what the buyer can do with them. If this is the main aim of this clause (which I guess is arguable) then I have a suspicion that it would not be upheld as it may constitute an unfair contract term. However the beauty of the law is that there is never any right or wrong answer - I argue, I submit, I contend and I suggest but I would never be so bold as to state!! When I win I'm brilliant and when I lose the Judge is an idiot that ought to know better.
POW would of course be perfectly within their rights to blacklist those flippers and refuse them any further purchases - however with payments being automated it would be very difficult for POW to filter out the blacklisted buyers before payment was taken - to get around this POW would need to inform relevant flippers that they are barred from future purchase so that in the event they ignore the ban and manage to get their order accepted POW would be able to escape the contract on the basis of mistake as to identity regardless of offer/acceptance and regardless of the wording of the T&Cs.
Sorry this turned into a longwinded essay, I got carried away. Main message is that if I were POW I would happily use the term to point those buyers to whom I wanted to refund but would I want to rely on it 100% when the chips are down? - No. As a seller of goods I have to accept that I have no right to dicate to buyers what they can and can't do with the goods I sell them and that any clause that tries to achieve this is open to challenge.
Having said that POW have my full support in their anti-flipper policies but ethics and the law are very different things.
You can all wake up now!
EDIT: (a) I don't see that the Distance Selling Regs have any relevance to this particular question (b) Don't assume that just because something is stated "officially" in T&Cs or elsewhere that it will necessarily stand up - how many times have you seen a notice saying "We accept no responsibility for injuries etc" - totally meaningless and simply put up as a deterant to would be claimants.
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rydal
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October 2006
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Bloomsbury Auctions ๐ฌ๐ง, by rydal on Nov 29, 2007 20:38:39 GMT 1, Alsbabar,
E-bay is not legally an auction because the sale come to an end through the elapse of time rather than because nobody is prepared to make a further bid. I understand that although "broadcast" via e-bay Bloomsbury was a "proper" auction with an auctioneer who would only bring the hammer down when he was satisfied there were no further bids. As such all purchases would be concluded at auction regardless of how the bids were made and so the Distance Selling Regs would not apply. Hope this clarifies matters.
Alsbabar,
E-bay is not legally an auction because the sale come to an end through the elapse of time rather than because nobody is prepared to make a further bid. I understand that although "broadcast" via e-bay Bloomsbury was a "proper" auction with an auctioneer who would only bring the hammer down when he was satisfied there were no further bids. As such all purchases would be concluded at auction regardless of how the bids were made and so the Distance Selling Regs would not apply. Hope this clarifies matters.
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rydal
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October 2006
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Bloomsbury Auctions ๐ฌ๐ง, by rydal on Nov 28, 2007 23:13:24 GMT 1, Manchestermike is correct, the Distance Selling Regs do not apply to contracts concluded at auction - that is a genuine auction however, not e-bay which as explained previously is not legally regarded as an auction.
Manchestermike is correct, the Distance Selling Regs do not apply to contracts concluded at auction - that is a genuine auction however, not e-bay which as explained previously is not legally regarded as an auction.
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rydal
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October 2006
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Bloomsbury Auctions ๐ฌ๐ง, by rydal on Nov 28, 2007 20:43:19 GMT 1, At the beginning of this thread there was a discussion of whether it is worth paying a premium at auction in order to benefit from the additional protection it provides. Whilst I must admit that I have never even been to an art auction I'm not sure this perceived protection extends as far as many would imagine.
For example see para 7 of Bloomsbury's conditions, this is only one of several exclusion clauses, which, as you will see specifically excludes liability in respect of genuineness and provenance. And before you ask, yes this clause will almost certainly stand up.
"7. Any representation or statement by the Auctioneer in any catalogue, brochure or advertisement of forthcoming sales as to authorship, attribution, genuineness, origin, date, age, provenance, condition or estimate selling price is a statement of opinion only. Every person interest should exercise and rely on his own judgement as to such matters and neither the Auctioneer nor his servants or agents are responsible for the correctness of such opinions. No warranty whatsover is given by the Auctioneer or the seller in respect of any lot and any express or implied warranties are hereby excluded".
I do acknowledge however that there is limited protection for buyers in connection with "deliberate forgeries".
I have been involved in several cases involving goods purchased from auctions and they were a nightmare, certainly scared me off auctions!
Remember that all provisions of the Sale of Goods Act (including those relating to description) can be validly excluded in auctions so this won't help out a buyer. Interestingly however e-bay is not regarded as an aution in the legal sense as the final price is actually determined by the elapse of time rather than the highest price a bidder is prepared to pay.
If anybody is interested, and when I have a spare minute, I am happy to put together some information from a legal perspective regarding a seller's liability for pieces that turn out not to be authentic or are misdescribed - from an auction or otherwise. Let me know.
Meanwhile, well done to everybody who picked up a bargain.
At the beginning of this thread there was a discussion of whether it is worth paying a premium at auction in order to benefit from the additional protection it provides. Whilst I must admit that I have never even been to an art auction I'm not sure this perceived protection extends as far as many would imagine.
For example see para 7 of Bloomsbury's conditions, this is only one of several exclusion clauses, which, as you will see specifically excludes liability in respect of genuineness and provenance. And before you ask, yes this clause will almost certainly stand up.
"7. Any representation or statement by the Auctioneer in any catalogue, brochure or advertisement of forthcoming sales as to authorship, attribution, genuineness, origin, date, age, provenance, condition or estimate selling price is a statement of opinion only. Every person interest should exercise and rely on his own judgement as to such matters and neither the Auctioneer nor his servants or agents are responsible for the correctness of such opinions. No warranty whatsover is given by the Auctioneer or the seller in respect of any lot and any express or implied warranties are hereby excluded".
I do acknowledge however that there is limited protection for buyers in connection with "deliberate forgeries".
I have been involved in several cases involving goods purchased from auctions and they were a nightmare, certainly scared me off auctions!
Remember that all provisions of the Sale of Goods Act (including those relating to description) can be validly excluded in auctions so this won't help out a buyer. Interestingly however e-bay is not regarded as an aution in the legal sense as the final price is actually determined by the elapse of time rather than the highest price a bidder is prepared to pay.
If anybody is interested, and when I have a spare minute, I am happy to put together some information from a legal perspective regarding a seller's liability for pieces that turn out not to be authentic or are misdescribed - from an auction or otherwise. Let me know.
Meanwhile, well done to everybody who picked up a bargain.
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rydal
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October 2006
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Legal Delivery Times from Online Stores, by rydal on Nov 10, 2007 13:39:28 GMT 1, If delievery takes more than 30 days you are entitled to cancel the order and receive a refund within a further 30 days. This is fine if you no longer want your print and would rather your money back but I'm guessing most on here still want the print.
If delievery takes more than 30 days you are entitled to cancel the order and receive a refund within a further 30 days. This is fine if you no longer want your print and would rather your money back but I'm guessing most on here still want the print.
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rydal
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October 2006
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HIT TESCO WHERE IT HURTS - XBOX FOR ยฃ34, by rydal on Nov 8, 2007 21:20:13 GMT 1, Good try guys but Tesco's will not be obliged to honour these purchases and I doubt very much they will chose to do so as a gesture of goodwill. Regardless of their terms and conditions and principles of offer and acceptance they will be able to void the contracts on the basis of "operative mistake". Previous cases have involved Argos selling TV's (which they didn't honour) and Kodak selling cameras online (which they did honour but only because the deal was just about believable, given that the page was covered in "Special Deal" type promotions etc). Contract law is a bit more complex than most consumer websites would have you believe!!
Good try guys but Tesco's will not be obliged to honour these purchases and I doubt very much they will chose to do so as a gesture of goodwill. Regardless of their terms and conditions and principles of offer and acceptance they will be able to void the contracts on the basis of "operative mistake". Previous cases have involved Argos selling TV's (which they didn't honour) and Kodak selling cameras online (which they did honour but only because the deal was just about believable, given that the page was covered in "Special Deal" type promotions etc). Contract law is a bit more complex than most consumer websites would have you believe!!
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rydal
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October 2006
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Contract Law and Print Buying...!, by rydal on Nov 2, 2007 18:45:01 GMT 1, Putting aside the fact that US law applies not English, those who ordered but were not on the list would find it very difficult to insist on a print even if payment were taken. Firstly there are issues over whether an order has been "accepted" where the process is fully automated and at no stage has an actual decision whether to accept or not been made. It is for this reason that cheques sent in "full and final settlement" will not necessarily bar further claims even when cashed where the payment process is automated. This alone may be able to be overcome, however;
Secondly, it is almost certain that the retailer would be be able escape from the contract on the basis of mistake. They believed that they were receiving an order from a person on the preview list as these were the only persons thought to be logistically able to place an order. This was their mistake. Where a mistake is one sided there is room for argument however as the buyer would also have KNOWN of the mistake, as they were fully aware they ought not to be ordering, having not received the e-mail and having had to obtain log-in details from elsewhere, I would be confident that the contract would be set aside on this basis.
Yes, I'm a member of the profession and when I'm not soliciting you will find me at the bar!!
Putting aside the fact that US law applies not English, those who ordered but were not on the list would find it very difficult to insist on a print even if payment were taken. Firstly there are issues over whether an order has been "accepted" where the process is fully automated and at no stage has an actual decision whether to accept or not been made. It is for this reason that cheques sent in "full and final settlement" will not necessarily bar further claims even when cashed where the payment process is automated. This alone may be able to be overcome, however;
Secondly, it is almost certain that the retailer would be be able escape from the contract on the basis of mistake. They believed that they were receiving an order from a person on the preview list as these were the only persons thought to be logistically able to place an order. This was their mistake. Where a mistake is one sided there is room for argument however as the buyer would also have KNOWN of the mistake, as they were fully aware they ought not to be ordering, having not received the e-mail and having had to obtain log-in details from elsewhere, I would be confident that the contract would be set aside on this basis.
Yes, I'm a member of the profession and when I'm not soliciting you will find me at the bar!!
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rydal
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October 2006
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4 NEW IAN FRANCIS PRINTS ON BLK MARKET NOW, by rydal on Oct 31, 2007 0:40:29 GMT 1, I think shipping last time round was $80 so a big increase! How much are the actual prints?
Don't suppose anybody would "lend" me a username etc in order to access???
I think shipping last time round was $80 so a big increase! How much are the actual prints?
Don't suppose anybody would "lend" me a username etc in order to access???
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rydal
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October 2006
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Did everyone receive GIWTBB prints?, by rydal on Oct 30, 2007 9:29:08 GMT 1, Nor me!
Nor me!
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rydal
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October 2006
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refunding. question, by rydal on Oct 26, 2007 22:15:51 GMT 1, In legal terms e-bay sales are not regarded as auctions, this is because the final price is determined by the expiry of a set time limit rather than nobody being prepared to bid higher. As a result the DS Regs do apply to ebay sales where the seller sells in the course of a business - remember that even private individuals who regularly sell prints may be regarded as a business even if they don't regard themselves as such.
In legal terms e-bay sales are not regarded as auctions, this is because the final price is determined by the expiry of a set time limit rather than nobody being prepared to bid higher. As a result the DS Regs do apply to ebay sales where the seller sells in the course of a business - remember that even private individuals who regularly sell prints may be regarded as a business even if they don't regard themselves as such.
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rydal
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October 2006
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Collectors Prints WTF!?, by rydal on Oct 22, 2007 13:53:03 GMT 1, I ordered on 3rd September at which time they said they were waiting for Ian to sign some more pieces which would take about 3 weeks - nothing since.
I ordered on 3rd September at which time they said they were waiting for Ian to sign some more pieces which would take about 3 weeks - nothing since.
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rydal
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October 2006
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Antony Micallef, God I Want to be Bad POW print, by rydal on Oct 22, 2007 11:34:54 GMT 1, Mine wasn't refunded, have already paid off the credit card. Starting to get nervous!
Mine wasn't refunded, have already paid off the credit card. Starting to get nervous!
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rydal
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October 2006
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Antony Micallef, God I Want to be Bad POW print, by rydal on Oct 22, 2007 9:01:19 GMT 1, Is anybody in Bristol still waiting???
Is anybody in Bristol still waiting???
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rydal
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October 2006
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Antony Micallef, God I Want to be Bad POW print, by rydal on Oct 11, 2007 16:13:13 GMT 1, Cheers DM&P, I'll give it another week and then chase them up to see what's happening.
Cheers DM&P, I'll give it another week and then chase them up to see what's happening.
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rydal
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October 2006
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Antony Micallef, God I Want to be Bad POW print, by rydal on Oct 11, 2007 15:42:35 GMT 1, Hi DM&P, which Ian Francis have you received? Not one the ones from Collectors Prints that were waiting for Ian to sign is it - I've been waiting for my Hotel/Porn for almost 6 weeks now! No GIWTBB for me today either.
Hi DM&P, which Ian Francis have you received? Not one the ones from Collectors Prints that were waiting for Ian to sign is it - I've been waiting for my Hotel/Porn for almost 6 weeks now! No GIWTBB for me today either.
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rydal
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October 2006
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Matt Small - Moses, by rydal on Aug 28, 2007 20:49:15 GMT 1, Being confident in my own sexuality allows me to say that personally I prefer Terry (next on my shopping list I think);
Being confident in my own sexuality allows me to say that personally I prefer Terry (next on my shopping list I think);
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rydal
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October 2006
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When I grow up I want to have as much money as Ban, by rydal on Dec 27, 2006 16:38:07 GMT 1, I wonder why the girl giving out the flyers was saying "good luck" - is there any chance that these may play a part in the POW Banksy lottery?
I wonder why the girl giving out the flyers was saying "good luck" - is there any chance that these may play a part in the POW Banksy lottery?
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rydal
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October 2006
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POW details...., by rydal on Sept 7, 2007 11:16:55 GMT 1, There are also accountants at that address - Alan Sollomons & Co so that could be the registered office, or the solicitors suggested earlier.
One of the other shareholders in POW is "B Hudson" whom I understand is actually Ben Eine.
There are also accountants at that address - Alan Sollomons & Co so that could be the registered office, or the solicitors suggested earlier.
One of the other shareholders in POW is "B Hudson" whom I understand is actually Ben Eine.
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