The effects of defective descriptions of art items sold at art auctions and during bidding – legal analysis
Publication date: October 23, 2025
The core of every offer at online art auction is a proper description of the item.
According to the Civil Code, the conclusion of any contract involves the exchange of mutually agreed declarations of intent between the contracting parties. The Code specifies various procedures for exchanging these declarations: the bidding procedure (Article 66), the auction or tender procedure (Article 701), and the negotiation procedure (Article 72). Even in a procedure as specific as the auction procedure, which is most often used by auction houses to conduct auctions, the provisions regarding declarations of intent and the regulations governing contracts concluded under this procedure will apply – in the case of auctions, this is most often the sales contract (Article 535 et seq. of the Civil Code). These regulations can be particularly relevant in the case of flawed descriptions of items offered at auction.
First of all, it is worth presenting what declarations of intent are made by auction participants:
1. The auction announcement submitted by the organizer is an invitation to submit offers within the meaning of Article 71 of the Civil Code.
2. Bidding by another participant during the auction – an offer to conclude a sales contract
3. Confirmation of the bid by the auction organizer – acceptance of the offer and conclusion of the contract.
No provision of the Code imposes invalidity or any other substantive sanction for an incorrect product description contained in an invitation to tender or a “standard” offer. An incorrect description is irrelevant at the stage of concluding a sales contract. Any consequences resulting from including an incorrect description of the auction item or failing to inform the contractor of its actual characteristics may be pursued under civil law after the sales contract has been concluded.
Disadvantages of declarations of intent
First, it is important to consider whether a person submitting a bid during an auction has the right to invoke defects in their declaration of intent. The legal basis for this specific case is the error regulated in Article 84 of the Civil Code. According to this provision, a person may avoid the legal consequences of a declaration of intent that constitutes a paid legal act if:
– An error concerns the content of a legal act – this means the declarant has a false understanding of everything the content of the legal act covers. The error may therefore relate to the subject matter or characteristics of the subject matter of the legal act. For example, a buyer enters into a sales contract for a copy of a painting under the false belief that they are purchasing an original work. Therefore, if the description of the item put up for auction indicated that the painting is original, this would constitute an error as to the content of the legal act.
– If the statement was made to another person, the error must have been caused by that person (even without his or her fault), or if that person knew about the error or could easily have noticed it – this is a premise that should be assessed ad casum for each error that occurs.
– The error was material, i.e. it justified the assumption that if the person making the declaration of intent had not acted under the influence of error and had assessed the matter reasonably, he would not have made the declaration of this content – this premise should also be assessed ad casum, taking into account, among other things, the differences between the description of the item and its actual condition.
If these conditions are met, a person who submitted a bid in an auction based on an untrue or incomplete description of the item contained in the invitation to submit bids may invoke an error under Article 84 of the Civil Code. In this situation, the fact that the “deceived” person submits the bid and the “cheater” merely accepts it is irrelevant, because the subject of the bid is specified by the auction organizer in its terms and conditions and the announcement, which constitute an invitation to submit bids.
Under Article 88 of the Civil Code, the legal consequences of a declaration of intent made to another person under the influence of error may be avoided by a written declaration to that person, and this right expires one year after the discovery of the error. Effective avoidance of the legal consequences of a declaration of intent made under the influence of error renders the contract invalid retroactively (ex tunc). Performance made in performance of such a contract is undue. The basis for a claim for its restitution is the provisions on unjust enrichment.
Warranty
If the description of the item that is the subject of the contract concluded under the auction procedure is inconsistent with the actual state of affairs, the provisions on warranty may also apply. Taking into account that most often the auction organizers are entities professionally engaged in sales and conducting business activities, the buyers are natural persons, and the subject of the contract are movable goods, a natural person should be considered a consumer, which will consequently lead to the application of the warranty provisions of the Act on Consumer Rights. According to the latter, the goods are consistent with the contract if the description, type, quantity, quality, completeness and functionality are consistent. This provision therefore allows for determining the non-conformity of the goods with the contract if it is found that the description of the auctioned item is inconsistent with reality. The entrepreneur is liable for the lack of conformity of the goods with the contract existing at the time of its delivery and discovered within two years of that moment. The entrepreneur cannot invoke the expiry of the time limit for determining the non-conformity of the goods with the contract, if he fraudulently concealed this deficiency.
The Consumer Rights Act gives bidders more options than simply relying on defects in declarations of intent. Primarily, they can request replacement or repair of the defective item – however, this is unlikely when bidding on unique items. This gives bidders the right to submit a declaration of price reduction or withdrawal from the contract (Article 43e, paragraph 1, point 1, in conjunction with Article 43d, paragraph 2, sentence 2). The reduced price must be proportional to the contract price in the same way that the value of the non-conforming goods is proportional to the value of the conforming goods (Article 43e, paragraph 2). Importantly, a consumer cannot withdraw from a contract if the lack of conformity is immaterial, but the Act introduces a presumption that the lack of conformity is material. Withdrawal from a contract has the same consequences as evading the effects of a declaration of intent.
Case studies
The regulations developed above may be of significant practical importance in the context of the following matters:
Auction of the collection “Polish Advertising Graphics Yearbook 1935 PAT” numbered 0632
This collection was auctioned at 2,700 PLN. After the buyer received the order, it turned out that approximately 10% of the item was missing. The item description on the auction website did not include any information about the incompleteness of the collection (missing items include several Wedel stationery items and top-of-the-line hotel items). The seller only stated: “The condition is very good, as seen in the photos.”
Analyzing this case from a legal perspective, it should be recognized that the buyer could invoke a defect in the declaration of intent in the form of an error. As noted above, the error concerns the content of the legal act, as it relates to the characteristics of the purchased item. If the seller is auctioning a COLLECTION, then, using the simplest linguistic interpretation, the buyer can expect to purchase it in its entirety, not with missing elements. In such a case, the auction organizer should inform bidders in the item description that the collection is incomplete. Therefore, it can be objectively assumed that a reasonably acting auction participant, had they known they were bidding on an incomplete collection, would not have submitted further bids during the auction above the amount they believed would be appropriate for the missing item, or even would not have bid at all. The error in this case is therefore significant. The final requirement that must be met is the auction organizer’s knowledge. Given that the seller was a professional entity involved in the sale of unique collections, it could be demonstrated that they could at least have easily noticed the error. Indications of misrepresentation or knowledge by the seller could be demonstrated depending on the precise circumstances of the case.
The person who bid on this collection could also invoke consumer warranty provisions. The purchased goods should be consistent with the description, type, quantity, quality, completeness, and functionality. A collection is intended to be a complete set of various works (in this case, advertisements and posters), which should be consistent with the catalog describing the materials contained within. If any items are missing, the collection is incomplete, a fact of which the consumer was not informed in the item description or at the time of concluding the contract.
Auction of “Bookplates of Karol Hiller with an introduction by Przecław Smolik, Łódź, 1927”
This auction item should be assessed somewhat differently. The problem is that this item was published in a limited edition of 250 copies, while this particular one is numbered 270. This information is located on one of the book’s pages, as seen in the attached image. In pre-war times, it was standard practice to number copies beyond the print run.
It can seem hard to recognize an error or apply the warranty provisions in this case:
– The seller does not mislead the buyer – the photo included in the auction announcement clearly shows the item being discussed. Therefore, the buyer is informed about the item they are purchasing.
– Warranty – the item cannot be deemed to be inconsistent with the description.
For the purposes of this discussion, the fact that the lower the number, the higher its economic value is irrelevant. The bidder knows that this is likely a later item and can assess its value and whether they wish to bid. Nowhere in the description is the buyer misled into thinking that the item being purchased is different from the one they actually received.
