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Old 23rd January 2010, 02:22 PM
poacher99 poacher99 is offline
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Default An interesting legal problem.

OK, there this guy Caleb Larsen, has built a box, he calls it 'Art'. Its a black square box, and the only external feature is a power socket and an network (ethernet) socket, used to plug into a network .

The box has some hard wired electronics, and when connected up , will automatically create an auction every 7 days on the internet site Ebay to sell its self. The object is you buy this piece of 'art', and every 7 days you have to rebuy it, and the artists gets all the profit.

The box is on ebay.com as item 190367275705 (this forum prevents me from posting a link due to some bizarre pointless rule)

Theres a detailed contract you allegedly agree to when buying it to keep this money making scan rolling, ill repost it below. The question is, is this contract enforceable in UK law, becaring in mind the guy is american and its being sold on US ebay.

I believe it isnt, particularly clause 6, as its definitely illegal to impose a penalty clause in a civil contract - your remedy for breach of contract in the Uk is to sue for actual damages incurred, and you may not make money from spurious 'penalties' (the same reason private parking tickets are unenforceable)

Also, the contract seeks to bind future third parties to the original purchase contract, is that not also unenforceable?

I believe once the box gets shipped outside the US, the contact is unenforceable and the new owner becomes the permanent owner.







This purchase agreement was drafted with the aid of Marsha G. Ajhar of Hartman & Craven LLP, NYC.

PURCHASE AGREEMENT

THIS AGREEMENT is by and between Caleb Larsen, a U.S. citizen (hereinafter “Artist’) and the “Collector”, the purchaser, below identified, of an artistic work titled “A Tool to Deceive and Slaughter (2009)” by Artist, effective as of the date of execution by Collector, and thereafter by and between the current Collector and any and all subsequent new purchasers of the Artwork, also as identified below, also effective as of the date of their/its execution of this Agreement.

WHEREAS:

A. Artist has created a work of art titled “A Tool to Deceive and Slaughter (2009)” (“the Artwork”) which consists of a black box that places itself for sale on the auction website “eBay” (the “Auction Venue”) every seven (7) days. The Artwork consists of the combination of the black box or cube, the electronics contained therein, and the concept that such a physical object “sells itself” every week.

B. Collector understands and agrees to the underlying concept and function of the Artwork and that the sale of the Artwork by Artist is dependent and conditioned upon Purchaser’s agreement and adherence to the below terms. Such terms are fundamental and crucial to the on-going viability and artistic integrity of the Artwork.


WHEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is hereby agreed as follows:

1. Collector agrees that the Artwork will remain connected to a live Internet connection at all times, with disconnections allowed only for the transportation of the work from one venue to another.
2. Upon purchasing the Artwork, Collector may establish a new value for the Artwork. The new value may not exceed current market expectations for the Artwork based on the current value of work by the Artist. This value may be reassessed quarterly. This value will be set as the minimum bid of the auction. Any bid meeting or exceeding this amount will result in a legitimate sale via the Auction Venue and the Policies of the Auction Venue must be followed regarding this matter.
3. Collector must disclose the terms of this Agreement to persons bidding on the Artwork. Any successful bidder must agree to be bound by the terms of this Agreement before title to the Artwork is transferred to such bidder who shall then become the new and next Collector (the “New Collector”). These requirements and terms shall apply equally to Collector and any and all New Collectors.
4. Collector is responsible for any and all fees and charges generated by the Artwork on the Auction Venue.
5. In the event of a sale of the Artwork via the Auction Venue, Collector is required to sell the Artwork to the highest bidder. The Artwork must be properly packaged and promptly shipped to the New Collector. Prior to receipt of the Artwork, and as a prior condition to the sale and transfer of the Artwork, New Collector is required to execute this Agreement which shall evidence the agreement between Collector and New Collector to be bound by these terms.
6. The Auction Venue’s Terms of Service must be followed at all times and any failure to follow the Auction Venue’s Terms may result in additional penalty including the suspension of the Collector’s Auction Venue account by the Auction Venue.
7. The software driving the project will remain hosted on servers of the Artist’s choosing to aid in maintenance. Artist will supply a copy of the software upon request by either the Collector or any New Collector.
8. The Artwork will only be sold via Auction Venue established by the Artist. Any sale outside of this structure voids the status of the work as an Artwork. Any commission by a gallery or agent may be figured into the value of the work.
9. The Auction Venue may change at any time at the discretion of the Artist. The Collector will be notified of any changes via registered mail.
10. In the event of a sale the Collector agrees to pay a sum equal to fifteen percent (15%) of the Appreciated Value (as hereinafter defined), if any, occasioned by such transfer or distribution or payment of insurance proceeds to the Artist (or Artist's agent for the purpose) within thirty days of the sale.
11. "Appreciated Value" of the Work for the purposes of this Agreement, shall be the increase, if any, in the value or price of the Work over the price for which the Collector had purchased the Artwork.
12. Any failure to follow these terms without prior consent of Artist will forfeit the status of the Artwork as a legitimate work of art. The item will no longer be considered a genuine work by the Artist and any value associated with it will be reduced to its value as a material object and not a work of art.
13. This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
14. If any provision of this Agreement or the application of any provision to any person or to any circumstance is determined to be invalid or unenforceable, then such determination shall not affect any other provision of this Agreement or the application of such provision to any other person or circumstance, all of which other provisions shall remain in full force and effect. The parties intend that if any provision of this Agreement is susceptible to two or more constructions, one of which would render the provision enforceable and the other or others of which would render the provision unenforceable, then the provision shall be given the meaning that renders it enforceable.
15. No waiver by any party of any covenant or condition or the breach of any covenant of this Agreement to be kept or performed by the other party shall be construed as a waiver by the waiving party of any subsequent breach of such covenant or condition or authorize the breach or nonobservance on any other occasion of the same or any other covenant or condition of this Agreement.
16. This agreement may be executed in two copies, each of which is deemed an original. Electronically transmitted and/fax signatures shall be treated as original signatures.
17. This Agreement is intended to benefit and be binding upon Artist, Collector, and all those acting in concert or participation with them or under their direction or control, as well as their successors, heirs and assigns.
18. This Agreement is the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior agreements and understandings, written or oral, with respect to such subject matter. This Agreement cannot be amended except in a written instrument executed by all parties.
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Old 23rd January 2010, 11:36 PM
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Default Re: An interesting legal problem.

Sounds dodgy to me. The no link rule is a deterrent for spammers who come here just to post a link and promote their product or service.
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Old 24th January 2010, 04:30 PM
poacher99 poacher99 is offline
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Default Re: An interesting legal problem.

the lawyer mentioned in the doc - Marsha G. Ajhar of Hartman & Craven LLP, NYC - actually does exist, and there a legit law firm.

The point here is how can he enforce such a contract in other countries? i dont see how he can.
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