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message from Romain SOMEONE IS SELLING MY ART ON CAF !!
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118 posts in this topic

2 hours ago, comix4fun said:

Holding oneself out as the owner of items one does not own and then attempting to entice or enter into a transaction or contract for sale with a buyer is de facto fraudulent behavior. 

The buyer holds himself out to be a buyer, ready, willing and able to purchase an item and that he has personal funds available to perform his portion of the transaction with.

The seller holds himself out to a seller, ready, willing and able to sell and item and that he actually owns and possesses said item and can deliver that item, which he owns, to the purchaser to perform his portion of the transaction. 

You cannot have a meeting of the minds, the most basic tenet of contract and transaction, if one party is entering into the contract or transaction deceiving the other as to their ability to perform, their ownership of the item in question, or their possession and ability to immediately perform their end of the deal. 

Some would consider it fraud in the inducement, where one party is deceived into dealing with a person they believed was the owner of the item they are attempting to purchase when in, fact, they were not the owner until after they consented to purchase or even after performing by providing payment. 

Regardless of damages, one cannot enter into an agreement or a transaction with another deceptively or withholding key information (such as you don't own or possess the item you are selling) and simultaneously believe there's no legal line that has been crossed. 

The law is always about damages. Fraud itself requires damages as an element of the case. What damages did the original owner suffer? 

Edited by Rick2you2
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1 minute ago, Rick2you2 said:

The law is always about damages. What damages did the original owner suffer? 

I am less interested in the legal aspects than the ethical aspects but the final buyer is the one who suffered damages and the one who was defrauded I would think. He is the one whose contract was invalid and who paid an inflated price.

But like I said, it is such a clearly unethical behavior to sell something you do not own that I am not too concerned with the legalities.

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2 minutes ago, Rick2you2 said:

Anything else you want to try and impress me with?

Not trying to impress you or anyone else for that matter, only to point out that your absolute determination of the lawfulness in question is at least lacking (the same way you dismissed the point I was raising). As Chris did a much better job than me in addressing the legal arguments I’m more than happy not to spend any more time on a mock trial. 

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Just now, Bird said:

I am less interested in the legal aspects than the ethical aspects but the final buyer is the one who suffered damages and the one who was defrauded I would think. He is the one whose contract was invalid and who paid an inflated price.

But like I said, it is such a clearly unethical behavior to sell something you do not own that I am not too concerned with the legalities.

I don’t disagree with you. It’s a bad business practice, as I said earlier.

 

 

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1 minute ago, Rick2you2 said:

I don’t disagree with you. It’s a bad business practice, as I said earlier.

 

 

the points about legality are moot perhaps (I am not a lawyer so I don't know for sure) but the ethics are bad and should be sufficient to chastise the seller.

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4 minutes ago, rotembk said:

Not trying to impress you or anyone else for that matter, only to point out that your absolute determination of the lawfulness in question is at least lacking (the same way you dismissed the point I was raising). As Chris did a much better job than me in addressing the legal arguments I’m more than happy not to spend any more time on a mock trial. 

The primary point of my earlier comment was that there is a difference between a bad business practice and unlawful conduct, not to go “LA Law” or something. I also have to point out that the OP and the target don’t use English as their primary language, so we shouldn’t be too fast to judge.

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21 minutes ago, Rick2you2 said:

This isn’t a law school exam: it’s a question of whether the buyer did anything wrong. Maybe not under the law, but definitely as a matter of market etiquette. That is the reason for my Contracts synopsis for non-lawyers.

If you want to play law school in your example: (1) there is no representation of ownership being made since there is no commercial contract containing a representation, and (2) unjust enrichment claims in most states require an expectancy by the person claiming unjust enrichment (the original seller in France) they they would be compensated by, in this case, the buyer from the buyer. No unjust enrichment claim here since the two never knew each other or communicated. “Good faith” as an enforceable implied contractual duty is legally irrelevant here—nothing suggests the sort of bad act triggering a breach of that duty (which is mostly used as a gap filler in written contracts anyway). But, there are conflict-of-laws questions, and a trivial copyright infringement claim. Anything else you want to try and impress me with?

Point one is a fallacy.  The representation of ownership is made by offering the items for sale, which is offering to transfer title from the seller to the buyer, which cannot be done unless the seller is empowered to sell as a bailment, or through direct agency with the owner, or owns the item outright.  In this case the OP alleges that none of the above existed. 

Frankly, these are distinctions being made without reason, as representing oneself as owner of items for sale when one is not the owner is inherently deceitful regardless of enforcibility of claims, and fall drastically beyond simply “poor etiquette”. 

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HI,

I am one of the People Visar named as having dealt with recently. I recently bought a page from him and the transaction was smooth as silk. He even held it for me a week or two before I paid. He did ask for friends and family, I explained I do not do that and he had no issue. The page went out with tracking and was within my hands within about 10 days from France to NJ. The whole transaction was rather pleasant and easy, now I can not speak to the pre-selling of art, but flips are prevelant in this hobby and the line may have been crossed there, but that post is from 2 years ago. 

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8 hours ago, comix4fun said:

Point one is a fallacy.  The representation of ownership is made by offering the items for sale, which is offering to transfer title from the seller to the buyer, which cannot be done unless the seller is empowered to sell as a bailment, or through direct agency with the owner, or owns the item outright.  In this case the OP alleges that none of the above existed. 

Frankly, these are distinctions being made without reason, as representing oneself as owner of items for sale when one is not the owner is inherently deceitful regardless of enforcibility of claims, and fall drastically beyond simply “poor etiquette”. 

I was going to let this go because this is not a law school test, but after this, I couldn't. 

You modified what you wrote the first time by claiming there must be a representation of ownership. I don't agree with that, and I still do not agree with this expanded claim. At most, there is an implicit promise by the person listing an item that he/she has access to the goods in question and can sell them. Dealers regularly sell things they do not own, nor hold as a bailment (to you non-lawyers, it means holding something for someone else, similar to a trust).

There is no reason to have a direct agency with an owner (like a dealer) if someone holds a chose in action (a contract right) to purchase something. I doubt even that is required, because an attempted purchaser who could not obtain something could still sue the non-seller for breach of contract (maybe fraud, depending on intent of the non-seller).

If there were a representation of ownership or control, then what happens to a dealer who does not produce the artwork someone has ordered? Assume a simple situation where the artist simply changes his/her mind (other reasons, maybe different results). In that case, the dealer could be sued by the buyer for breach of contract by failing to produce the artwork requested and be forced to pay damages.

There may be specialized areas which produce a different result, but in general contracts law, which should apply here, I don't see it.   Now I hope you will excuse me if I drop this discussion. I am here to get away from work, not to "double my pleasure" with more analysis.

Edited by Rick2you2
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40 minutes ago, Rick2you2 said:

I am here to get away from work, not to "double my pleasure" with more analysis.

AMEN.

Maybe we can all revisit this when a similar situation results in an actual suit being filed.

Not holding my breath waiting though, as attorneys like to get paid (don't we all, attorney or not?) and these hard to find the damage tales just don't generate the fees.

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I dunno how hard to find the damage it is. Maybe hard "legally". But certainly to reputation. At least to those among us to whom that is important.
Which as others have said, carries it's own "justice", and isn't beholden to written law.

It's a small enough hobby. Folks that are around long enough learn the names of those they don't care to deal with.
I've personally no interest in shopping for work from someone who is selling things they don't have, and don't have an existing business agreement in place with the art's source ahead of time.
Too many variable, and too many potential issues.

 

I did that just once (a couple years back with the Donnellys), when I broke my own self imposed rules of who to buy from, because the piece was just "too good" to pass up. So after 20+ years of swearing off the DBs, I caved. Even with their inflated pricing and the rest.
And then the piece came, and it was meddled with. I wrote this all out in detail in the thread at the time. But the point is, that's my last flirtation with buying from questionable folks. IMO, it's not worth the stressors involved. I don't wanna buy from party B, that is flipping from Party A, if they don't have that work in hand at the time of my purchase. No thanks. No how.

 

 

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1 hour ago, ESeffinga said:

I dunno how hard to find the damage it is. Maybe hard "legally". But certainly to reputation. At least to those among us to whom that is important.
Which as others have said, carries it's own "justice", and isn't beholden to written law.

I was referring to "legally", if your response was driven from my previous comment.

Reputational...? I think not. The Donnelly's are doing swell business in spite of there not being a single page of posts with their names/business mentioned that doesn't go darkly negative instantly. So...most do not care. They want the art, not a new friend they can trust to watch over their drunk wife for an evening. For some of us rep trumps art, all art, any art, but again I'd say for most..."not".

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1 hour ago, ESeffinga said:

IMO, it's not worth the stressors involved. I don't wanna buy from party B, that is flipping from Party A, if they don't have that work in hand at the time of my purchase. No thanks. No how.

I hear you but as a counterpoint: I don't care at all.

Show me the right art at a price I want to pay and I care not about anything else. Unless you are somebody I'm already not doing business with for other reasons. I don't care what you paid, where it came from (or will be coming from), how "morally" egregious your mark-up is nor how fast you're flipping (including "not in hand", pre-order, etc). If something goes wrong...I'll get the charge reversed and keep on steppin'. It's just art, not fungible. Money is. Always more art!

If somebody sources something (as an example) in a foreign land/language that's not easily identifiable by me, but definitely wanted by me for the price offered to me...I do not care if an obscure websites $350 list becomes my $1,000 invoice. First seller got his, middler got a very rich finder's fee, I got the art. And what of it? I'd never pay that $1,000 if I didn't deem it workable for me. $350 (or whatever)...was never available to me (unless I was lazy and didn't perform dd) and thus is not part of the equation!

Having written the above, one does have to get up pretty early to beat me to something I really want...or get me to pay up considerably on a short-term flip or "use my money" to buy from someone else. I have something called...Google Images...and Tineye.com and...some other tools I'm keeping private to suss out what games, if any, are being played. 999/1000 transactions...I know where something was already, a pretty good idea of what the market was and is, what "my" market for same is, and whether I'm really that interested anyway. Surely I've been taken on occasion (but I did want the art for the price, so did I really get taken?) but it's so rare...who cares. Not me. It's the newbs that get taken in -grossly- mostly, they do not have friends to ask/help or the awareness for how to perform due diligence before spending even mid three figures in this hobby. The rest of us...I think we do fine...by avoiding the Donnelly's ;)

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3 hours ago, Rick2you2 said:

I was going to let this go because this is not a law school test, but after this, I couldn't. 

You modified what you wrote the first time by claiming there must be a representation of ownership. I don't agree with that, and I still do not agree with this expanded claim. At most, there is an implicit promise by the person listing an item that he/she has access to the goods in question and can sell them. Dealers regularly sell things they do not own, nor hold as a bailment (to you non-lawyers, it means holding something for someone else, similar to a trust).

There is no reason to have a direct agency with an owner (like a dealer) if someone holds a chose in action (a contract right) to purchase something. I doubt even that is required, because an attempted purchaser who could not obtain something could still sue the non-seller for breach of contract (maybe fraud, depending on intent of the non-seller).

If there were a representation of ownership or control, then what happens to a dealer who does not produce the artwork someone has ordered? Assume a simple situation where the artist simply changes his/her mind (other reasons, maybe different results). In that case, the dealer could be sued by the buyer for breach of contract by failing to produce the artwork requested and be forced to pay damages.

There may be specialized areas which produce a different result, but in general contracts law, which should apply here, I don't see it.   Now I hope you will excuse me if I drop this discussion. I am here to get away from work, not to "double my pleasure" with more analysis.

I am having a hard time understanding why you're twisting yourself into a pretzel to excuse, as the OP explains it, obviously deceptive behavior on the part of a seller...because it doesn't fall into what you believe are parameters for legal recourse.  There are things you can recover for in court and there are things that are a breach of trust, fair dealing and honesty. Simply because something can't be both doesn't mean that it can't be either. 

Dealers sell things they are explicitly empowered to sell by the actual owner or that they own themselves. A dealer may not hold himself out as agent for the owner, or empowered to sell an item which they hold no such power to sell. They also cannot hold themselves out as possessing an item when they don't. That's, all legal jargon aside, a lie.

Most of all, sellers are not allowed, under any circumstances, to deceive a potential buyer as to any material term of the arrangement. That they own it, control it, possess it, are empowered to sell it, etc. In general contract law the most basic tenet is "meeting of the minds" and when one party begins under the cloud of deception towards the other that is irreparably destroyed. 

But as I said, damages, technical contract law, and potentiality of repercussions do not, in any way, lessen that deceiving a potential buyer into believing that a piece is owned or controlled or possessed in a manner that expresses readiness to transact and perform, or any other basic tenet of transaction, is fraud on a very basic level.  

Edited by comix4fun
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2 hours ago, comix4fun said:

I am having a hard time understanding why you're twisting yourself into a pretzel to excuse, as the OP explains it, obviously deceptive behavior on the part of a seller...because it doesn't fall into what you believe are parameters for legal recourse.  There are things you can recover for in court and there are things that are a breach of trust, fair dealing and honesty. Simply because something can't be both doesn't mean that it can't be either. 

Dealers sell things they are explicitly empowered to sell by the actual owner or that they own themselves. A dealer may not hold himself out as agent for the owner, or empowered to sell an item which they hold no such power to sell. They also cannot hold themselves out as possessing an item when they don't. That's, all legal jargon aside, a lie.

Most of all, sellers are not allowed, under any circumstances, to deceive a potential buyer as to any material term of the arrangement. That they own it, control it, possess it, are empowered to sell it, etc. In general contract law the most basic tenet is "meeting of the minds" and when one party begins under the cloud of deception towards the other that is irreparably destroyed. 

But as I said, damages, technical contract law, and potentiality of repercussions do not, in any way, lessen that deceiving a potential buyer into believing that a piece is owned or controlled or possessed in a manner that expresses readiness to transact and perform, or any other basic tenet of transaction, is fraud on a very basic level.  

I am not twisting myself up into a pretzel for an excuse. I think that under common law contracts, and practicality, you are wrong. I am just tired of this subject. 

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Just now, Rick2you2 said:

I am not twisting myself up into a pretzel for an excuse. I think that under common law contracts, and practicality, you are wrong. I am just tired of this subject. 

 

You are, of course, entitled to your opinion however inscrutable I may find it given the simplicity of the facts presented before us by the OP.

If I had to summarize it would be something like the following ( I will say "seem to think" as I am taking how your position is interpreted by me, if incorrect please let me know):

You seem think sellers have no obligation to inform a purchaser that they do not own the item which they are selling, nor that they have the item in their possession, nor that they have been empowered to sell the property that rightfully belongs to another person. I am not sure if that extends to implicit and explicit statements by the seller falsely claiming ownership or agency empowering to sell, but you can clarify if you want.

And you seem to believe that fraudulent and dishonest behavior does not exist should there be no exact or certain formal legal remedy to correct said behavior.

Dishonesty existed long before there were laws or remedies reserved for civilized society. Dishonesty and deception exist entirely independent of remedies to correct them. I assure, of that I am not wrong.

I figured reasonable people would agree that sellers need to be honest with buyers and vice versa. That didn't seem controversial in any way to me. Sellers cannot pretend to be owners of what they do not own. Buyers cannot pretend to be ready and able to perform if they are not. They do a disservice to the other party and they undermine the most basic concepts of transaction. "can you recover in court?" is an entirely separate argument that exists parallel but not in any way determinate over whether dishonest, fraudulent, or unethical behavior has occurred. 

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2 minutes ago, comix4fun said:

 

You are, of course, entitled to your opinion however inscrutable I may find it given the simplicity of the facts presented before us by the OP.

If I had to summarize it would be something like the following ( I will say "seem to think" as I am taking how your position is interpreted by me, if incorrect please let me know):

You seem think sellers have no obligation to inform a purchaser that they do not own the item which they are selling, nor that they have the item in their possession, nor that they have been empowered to sell the property that rightfully belongs to another person. I am not sure if that extends to implicit and explicit statements by the seller falsely claiming ownership or agency empowering to sell, but you can clarify if you want.

And you seem to believe that fraudulent and dishonest behavior does not exist should there be no exact or certain formal legal remedy to correct said behavior.

Dishonesty existed long before there were laws or remedies reserved for civilized society. Dishonesty and deception exist entirely independent of remedies to correct them. I assure, of that I am not wrong.

I figured reasonable people would agree that sellers need to be honest with buyers and vice versa. That didn't seem controversial in any way to me. Sellers cannot pretend to be owners of what they do not own. Buyers cannot pretend to be ready and able to perform if they are not. They do a disservice to the other party and they undermine the most basic concepts of transaction. "can you recover in court?" is an entirely separate argument that exists parallel but not in any way determinate over whether dishonest, fraudulent, or unethical behavior has occurred. 

Apparently, my message was understood. Briefly, no, a seller has no obligation to disclose whether he owns a piece of art under any theory in the absence of special circumstances. But, if he accepts an offer and does not perform, he is liable for breach of contract and resulting damages. If he has made an offer of sale with intent to defraud, that can be fraud, but an element of the prima facie case, as you presumably know, is damages. Same rule of law for breach of contract: a contract, a breach, resulting in damages. It’s that simple. 

There can be special circumstances. If, for example, a public advertisement requires any bidders to own a crane to perform work, they better own the crane or face disqualification—there bid can not be accepted. 

Bad business practice is not necessarily actionable, but it will damage a reputation and can lead to lost future income. 

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Just now, Rick2you2 said:

Apparently, my message was understood. Briefly, no, a seller has no obligation to disclose whether he owns a piece of art under any theory in the absence of special circumstances. But, if he accepts an offer and does not perform, he is liable for breach of contract and resulting damages. If he has made an offer of sale with intent to defraud, that can be fraud, but an element of the prima facie case, as you presumably know, is damages. Same rule of law for breach of contract: a contract, a breach, resulting in damages. It’s that simple. 

There can be special circumstances. If, for example, a public advertisement requires any bidders to own a crane to perform work, they better own the crane or face disqualification—there bid can not be accepted. 

Bad business practice is not necessarily actionable, but it will damage a reputation and can lead to lost future income. 

You went right back to "damages". I thought I was clear that something can be fraudulent (fraud in the inducement is using a deceitful premise to induce another party to act) without being something that can be recovered on in court. They are distinct elements each to their own. Actions and violations exist entirely independent of enumerated remedies for collection of damages. The words and their definitions exist beyond a limited court-based application. Claiming that an action doesn't have a legal remedy isn't the same as claiming the action itself never occurred. 

It's not reasonable, logically, to ignore the underlying deceptive representations that induced the actions of the purchaser to act, simply because a formal legal remedy may or may not be available. 

And I did notice you parsed "obligation to disclose", which covers silence on behalf of the seller as to his ownership or right to sell items, from the following portion which asked about affirmative statements that are false, deceitful or fraudulent regarding the seller's ownership of the items they claim to sell.

Where do you stand on affirmative statements or a seller holding oneself out as the owner of an item they do not own, or officially representing an owner of an item that they do not represent? 

 

It does seem that in the bold section above you do agree that deceptively representing oneself as the owner of a piece, or as representative for the owner of a piece, when that is materially false is (at the very least) a bad business practice. That seems to point to some agreement between us that being dishonest with a purchaser is in and of itself wrong even if there's no court order forthcoming. 

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I've sold some pages to Visar and never had a problem.  He paid on time and was communicative and polite.  And yeah, I believe English is not his first language.
I didn't know anything about his selling or re-selling practices from a few years ago.    Mebbe it was deceptive, I dunno.

Shipping art internationally can be tricky; I've had pages "lost" for awhile but they eventually showed up.  And they were shipped priority first-class international.

If the questionable business practices happened a few years ago and he has modified his behavior since then, I am not sure if there's a problem.
Unless Visar has ripped off someone (sold a page and not sent it - and I don't think that has happened) then I will afford him the benefit of the doubt and will refrain from assuming dishonest or malicious intentions.
I would sell to him again. 

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