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postmortemIf there are three material issues discussed in auction litigation cases, they are almost always: the law, the contract, and customary practice.

In other words, what’s the applicable law or rule? What did the parties agree to in their contract? What is customary practice in regard to these circumstances?

Using a non-auction-related example, in the Victorian era, it was common for families to prop-up or place deceased family members in photographs with surviving mothers, fathers, brothers, sisters, etc.

A device such as this “Victorian post-mortem photography stand” might be used to support the deceased body to portray it as alive. Other family would typically stand around and nearby; the photographer would sometimes alter the photograph enhancing eyes or other features.

Let’s say there was a dispute between the photographer and the mother (of the deceased) regarding the quality of the photograph, or some like issue. A lawsuit is filed by the mother (plaintiff) versus the photographer (defendant) and subsequently maybe even a counterclaim as well (photographer v. mother?)

How is such a claim evaluated? As our title to this treatise notes, it generally flows like this: first, the law or rule that applies; second, the contract between the photographer and mother; third, the customary practice in regard to this particular industry.

Her initial claim in our aforementioned example is that her son’s feet were (are) too far apart to resemble a living person standing. The photographer first argues that the feet placement was necessary due to his “composition” and is customary. Thus a disagreement, and a lawsuit.

Therefore, our analysis follows these three steps:

    1. Is there a law or rule (including case law) that dictates feet placement? If so, it’s likely whatever this law or rule says will be held as the standard for both the photographer’s performance and for the mother to rightly expect.
    2. If there is no applicable law or rule, or the law or rule is vague or subject to private agreement or interpretation, the next consideration is the contract between the photographer and the mother. Were specifics regarding feet placement agreed upon, or was their mutual assent more-so that the photographer arrange the body suitably?
    3. Considering any vagueness in the contract, the final issue will likely regard customary practice. The photographer may cite that such feet placement is normal and customary in these types of photographs — and the mother didn’t object when the photo was taken. The mother would likely counter that the photographer owed her satisfaction and that he should know better than to arrange feet that far apart.

Outside of law or rules which dictate specific standards of performance, a contract with any ambiguity would likely be overridden by customary practice.

Further, even if the contract specifics dictated certain standards, if photographs for this mother in the past have had the same feet placement (counter to the contract) and she acquiesced or expressly approved — or she reviewed this photographer’s prior work otherwise, and didn’t object or raise the issue — she may be barred from her claim (per estoppel.)

In any auction/auctioneer litigation, the mix of applicable laws and rules and associated possible interpretations, along with any specifics or ambiguity in the contract, combined with customary practice and any acquiescence or objection to it, will likely be used to resolve such a claim — no differently than how our hypothetical Victorian post-mortem photograph claim would be resolved.

Involved in any auction/auctioneer litigation? Get an attorney and ensure that attorney has the support he or she needs to properly manage your case; certainly one option in that regard is us: http://auctionlegalconsulting.com/

Mike Brandly, Auctioneer, CAI, AARE has been an auctioneer and certified appraiser for over 30 years. His company’s auctions are located at: Mike Brandly, Auctioneer, Keller Williams Auctions and Goodwill Columbus Car Auction. He serves as Adjunct Faculty at Hondros College of Business, Executive Director of The Ohio Auction School and Faculty at the Certified Auctioneers Institute held at Indiana University.