Claim for rescission of contract for purchase of Ferrari car at auction after discovery of alteration to odometer.
Jonathan Hirst QC said (after discussing the Christie’s case): ‘Plainly this authority provides substantial ammunition for BandB Monaco to contend that they owed no duty of care to [the claimant] but, if English law applied, I would hold that he had surmounted the fairly low threshold of showing a reasonable prospect of success on this point for the following reasons. (a) But for the conditions of sale, there could be little doubt that BandB Monaco owed a duty of care. (b) The decision in De Balkany’s case on whether Christie’s owed any duty in tort was expressly obiter and moreover it would appear that the court was not addressed on the impact of s 2(2) of the Unfair Contract Terms Act 1977. (c) The conditions of sale in this case are not the same as Christie’s in the case. (d) In particular, cl 3 is prefaced with the following: ‘whilst every effort has been made to ensure the accuracy of the description’. I think it is arguable that the exclusions of liability which ensue proceed on the assumption that every effort has indeed been made by BandB Monaco and that if every (reasonable) effort has not been made the exclusions are not to be effective to exclude a duty of care. It is right to bear in mind that these are BandB Monaco’s conditions of sale, and they should be construed contra proferentem’.
Judges:
Jonathan Hirst QC
Citations:
[2003] EWHC 467 (Comm), [2003] 2 All ER (Comm) 36, [2003] ILPr 25
Links:
Citing:
Cited – De Balkany v Christie Manson and Woods Ltd QBD 19-Jan-1995
Over-painting was deemed to be a forgery within the Christie terms and conditions. The exception was excluded. Christie’s was liable under the guarantee it had given. Morison J also considered (obiter) the defendant’s possible liability in tort, and . .
Cited by:
Appeal from – Morin v Bonhams and Brooks Limited Bonhams and Brooks S A M CA 18-Dec-2003
The claimant had bought a vintage Ferrari motor car through the defendant auctioneers in Monaco but sought rescission after it appeared that the odometer had been altered. The auction conditions purported to exclude any description of the car. He . .
Cited – Avrora Fine Arts Investment Ltd v Christie, Manson and Woods Ltd ChD 27-Jul-2012
The claimants had bought a painting (Odalisque) through the defendant auctioneers. They now claimed that it had been misattributed to Kustodiev, and claimed in negligence and misrepresentation.
Held: Based on the connoisseurship evidence, the . .
Lists of cited by and citing cases may be incomplete.
Contract, Torts – Other
Updated: 19 July 2022; Ref: scu.272517