I understand that there is some question of recommitting this Bill.
Auctioneers and House Agents Bill, 1946—Recommittal.
I do not think that there will be any need to recommit.
The real difficulty on the last occasion arose in connection with the definitions in Section 2. I suggest that, if we require recommittal in regard to any section, we should call for it at the appropriate time. The real difficulty in Section 2 arose by the introduction of "Dutch auction" into the definition. I put down an amendment later to another section, in case the Bill was not recommitted, so as to leave a peg on which to hang an argument. The introduction of the Dutch auction into the statutory definition of the word "auction" might mean that a hawker would be prohibited from selling his wares, that the man with whom we are all acquainted at fairs—the old clothes man—would be prohibited from carrying on his business and the further question was raised by Senator Hearne as to whether one would be entitled to advertise a house for "£1,000 or best offer" or whether, owing to the introduction of the phrase "Dutch auction", he would require a licence under the Bill to do so. It was suggested at one stage that we would get away from all this difficulty by changing the definition of the word "auction" and the restrictive clause dealing with the handling of the deposit. I framed an amendment on those lines but, when I had done so, I realised that there might be strenuous opposition from the Revenue Commissioners, as they would not get their £10 licence duty. Possibly, it was for that reason the Minister was unable to deal with the matter along the lines we suggested on the last occasion. So far as I can find, there is nothing which alters the definition since the 1845 Act. I may be wrong in that. My search may not have been as exhaustive as it should have been.
But if there is nothing that alters the definition, it seemed to be clear that, when you incorporate the phrase "Dutch auction", the man selling clothes at a fair cannot continue to operate. It has been considered up to this that he could operate. I think that is an incorrect interpretation of the existing law, if my contentions are right. We should like to hear the views of the Minister on the matter.
I have looked into this matter and have obtained advice from the office of the Attorney-General. They advise that there is no widening of the scope of the 1845 Act—that nobody who has been unaffected by that Act would be affected by this Bill. I do not know what the actual legal position of hawkers at fairs is. Whether the position is that they are breaking the law and that it is not being enforced against them or not, I do not know.
I am told that that may be the position.
It is an unsatisfactory position.
If they are not in at present, I am assured that they are not brought in by this Bill. If you commence to define an auction, you may omit something which should be included. The better plan is, I think, to leave the Bill as it is, because people generally recognise what an auction is. The reason a Dutch auction is brought in is that it is generally known what it is.
The Bill and amendments thereto recommitted.
That is the only thing we have done but we have left the term "auction" without defining it clearly for that reason—that we might be leaving something out that ought to be brought in. That sort of thing might happen.
I think I was responsible for raising this in the first instance. Really the object of the Bill seems to be to cover a person who is selling goods that are not his own property, but the man who auctions clothes at fairs and markets is selling his own goods and not anybody else's. I have been looking up the thing since the last debate and it seems that salesmasters, for instance, in the market sell other people's goods without actually auctioning them; that is to say, they are looking for the highest bidder, but they are not, so to speak, shouting the odds. I would like to see them and I think it would be in their own interests to be included in the Bill because, if I had cattle to sell in the market, I would rather send them to the person who is a licensed auctioneer than to the person who is not licensed so that I would be safeguarded.
That would be a special inducement to every one of the salesmasters to take out a licence. After all if I am selling my own goods in the fair it does not matter to anybody, and I do not think the law need provide in any way to restrict a man who is selling clothes or any other such goods at a fair or market. I read the debate on the Committee Stage, and I did not see any reason why I could not sell my own house by auction, literally. I would not be doing any harm to anybody.
I think you would be breaking the law.
I agree, but I do not think I should be prohibited from selling my own house.
If you are going to do that at the moment—if you are going to auction it, you would have to take out a temporary licence.
Mr. O'Donovan
What we are really discussing is the question of covering people who are selling somebody else's property. If I announce in the papers that I will sell my house next week I do not think anybody should object. The law should not provide against me. I would like to see the word auction further defined.
That is a very important question. Evidently a man is prevented from selling his own house now.
By auction, yes, unless he gets a licence.
Does not that arise under amendment No. 3?
Yes, if that is passed, that would cover it.
The situation really is that while this matter arises in some respects in the amendment in my name, there would not be any necessity to have that amendment if it were not for the definition section. Personally, I do not want to have the right to stand up with the hammer and knock down my own house, but as I read the law as it is in the present Bill I am prohibited from advertising my motor car in the papers at £300 or the best offer. I do not think I should be prohibited from doing that. Neither do I think that any particular garage where I might have left my car and asked them to try to sell it for me should be prohibited from advertising that they have a car to sell at £300 or best offer. I do think they should be prohibited from conducting a public auction in the ordinary sense.
Are they so prohibited?
As I read the Bill they are, but because they are so prohibited at present I think there has been a certain amount of winking at the prohibitions. That is not a satisfactory way to leave the situation.
The difficulty about the case of a man selling his own property is to prove that it is his own property. Everybody knows how easy it is to pretend that he is selling his own property while in fact it might not be his own. The evasion would be there. The draftsman cannot get any more precise language for auction. But as far as this advertising of a house or car for sale is concerned, that is a different matter altogether from auctioning. It does not come into it and there is no prohibition against advertising your own house at a particular price or for the best offer unless it is done in public. That would be the Dutch auction. Auctioning I think has a definite and well understood meaning.
Would the Minister be willing to put in a section to that effect—that it would not be applied in advertising?
I approached this whole question with a view to having it made as clear as possible and the advice I have got is that there is no necessity for doing anything about a case like this. I do not see that I have any alternative.
On Section 2, the expression "operative date" means 6th July next after the passing of this Act. Would the Minister like to alter that to such date as the Minister shall fix?
Apparently it is the end of the licensing year and it would mean going into the next licensing year.
I think the Minister had some idea that some arrangement might be made with the insurance companies, and if these arrangements have not been made it would be better not to rush the matter. After all, we have carried on for a very long time without this Bill and I do not see why not longer. I think it would be safer to give the Minister an opportunity of fixing a later date.
I understand that is the end of the year and it would mean going into another year. You do not like having a Bill hanging fire for a whole year and I do not see any reason why it cannot be done in the three months we now have.
The suggestion I made will give you an opportunity of fixing the 6th July next and if you found it did not work, of extending it.
The members of the auctioneering profession have waited for this Bill for years. If we do this it will have to go back to the Dáil and there will be indefinite delay. I do not see that there is any necessity for holding it back.
Is the Minister not able to provide any safeguard to protect the hawkers at fairs whom we had in our minds? Can the draftsman not produce anything that will get us over this difficulty?
We went through every point raised here with a view to clearing up the difficulties and we have not been able to do any more than we have done.
It is not clear, then, whether a hawker who possesses a hawker's licence must now take out an auctioneer's licence. That is not clear?
The position has not been altered.
I think the Senator can draw his own conclusions from the Minister's answer.
Before you pass from Section 2, I want to draw attention to a point raised on the last occasion by Senator Douglas and myself in regard to the word "purchaser." A house agent is defined as meaning "a person who, as agent for another person and for or in expectation of reward, purchases, sells, lets or offers for sale or letting, or invites offers to purchase or take a letting of, or negotiates for the purchase, sale or letting of a house otherwise than by auction or attempts to effect such purchase, sale or letting".
The point raised on the last occasion was that it is reasonable to restrict actual dealings by house agents to those who will be holders of house agents' licences. The point is made that it is unreasonable to define the term in such a way that a person who negotiates a purchase should be required to have a house agent's licence. We can visualise a number of people who may act as negotiators in relation to the sale of a house or the sale of a farm or any other commodity and who may not have any financial interest in the matter at all or any financial dealings in it. It was argued on the last occasion that a person who acts in this manner should not be required to have a house agent's licence even if this person were paid for his services. As I understood it, the Minister said that he was only concerned with protecting the public where an agent was handling money belonging to other people. I do not think, therefore, he should consider embodying the word "purchase" in line 35 on page 2.
I think we discussed this on two occasions, on the Second Reading and on the Committee Stage. The point is that a person can do all the negotiating and take the money and hand it over to a solicitor. The loophole is there all the time and it was to avoid this that we brought in this. The question of an architect was raised by Senator Douglas. His advice regarding the structure and so on is all right but when it comes to negotiations it is a different thing. We are trying to deal with people who take deposits.
I must say the danger is if you accept Senator Duffy's case you are going to leave the door open to persons describing themselves as negotiators and that would cut across the whole Bill. Such a person could take a deposit?
Sub-section (3) of Section 7 says that if a person acts as a house agent he is guilty of an offence and on conviction liable to a penalty of £100. That is for acting in any one case as an agent.
If I may come back to the definition of a house agent raised by Senator Duffy, the Minister's definition is a person who is an agent for another person and who, for or in expectation of reward, purchases, et cetera. I see the point raised by Senator Hearne in regard to the word "negotiators" but is not the real difficulty that the Minister wants to exclude the person who acts in expectation of a reward? As the definition is phrased it means a person who acts in expectation of a reward such as an architect who inspects the house.
The difficulty seems to be in relation to the words "expectation of reward". If it was related more clearly to the agency it would safeguard the points raised by Senator Duffy and Senator Douglas and also the Minister's point. There must be no such thing as a person calling himself a negotiator but if a person doing genuine work, such as an architect, does some negotiation on behalf of his client it should be within his competence to do so. The negotiation work he does is merely incidental and should not be prohibited, if the non-prohibition does not leave a hole open for somebody else.
I can visualise a manager or an official of a company which is building houses acting as a negotiator for the sale of one of those houses. There is a well-known concern in Dublin, Associated Properties, Limited—a member of the Dáil is a director, I think—and that company is managed by a board of directors. They employ an official or officials selling houses to potential customers, or negotiating for the sale. The sale is not effected, so far as I know, through house agents, as usually defined, but by officials of the company. It seems to me that each of those officials would be required now to hold a house agent's licence. The official might be a typist who would not be in her job more than six or eight months and it seems unreasonable that she would need a licence.
There are insurance companies which lend money to people, particularly Guards, civil servants and teachers, to buy houses, and very often the agent of the company, who is interested in selling an insurance policy, may act, unintentionally, as negotiator for the sale of the house, as the sale of a policy depends on getting a house for the potential customer. That agent will earn a fee or commission on the transaction, just as the employee of Associated Properties is paid a salary for doing the business of the company, which is selling houses. I wonder whether that type of person is included in the definition and, if so, whether there is any good reason for it.
That person would be representing a body and would be a servant or official, not an agent. A director of an insurance company, if he is an employee, is not working for a separate fee, as it is part of his service to carry out this work.
A person can be both a servant and an agent.
An agent has to be under a separate contract to undertake to do this job for a fee. If he is an employee or an official, he is not an agent and he is not included.
Would the Minister consider my suggestion, to relate the reward directly to the agency?
I think I never got anything so carefully examined as this Bill.
The definition says:—
"the expression ‘house agent' means a person who, as agent for another person and for or in expectation of reward, purchases, sells, lets or offers for sale or letting, or invites offers to purchase or take a letting of, or negotiates for the purchase, sale or letting of a house otherwise than by auction or attempts to effect such purchase, sale or letting;"
Do the words "in expectation of reward" govern the words "or negotiates for the purchase, sale or letting of a house otherwise than by auction?"
Do they not govern everything that follows?
Yes.
I am not so sure. They seem to be two different categories. One is "offers for reward" and another "offers otherwise than by auction".
For reward.
It does not say so.
They are all governed.
There is no offence unless there is expectation of reward. I am not so happy about the use of the word "agent". The Minister is thinking all the time in terms of a house agent, but when this Bill becomes law other people not now house agents may become agents. For instance, an official of an insurance company may become an agent within this section, if he is going to get remuneration from the insurance compay on the basis of having helped to sell houses and insurance policies.
It is only the Revenue Commissioners who can move in this case and they will not make claims on that basis. It may be taken as a joke by Senators when I say the Revenue Commissioners can be relied on not to do unreasonable things like that. They will not act foolishly but will take the common-sense view of it.
Let that be devoutly hoped for, if the Minister has that much faith in the Revenue Commissioners.
I am far more worried about the Dutch auction at fairs, which will be an open breach of the law.
That will be a matter for the Revenue Commissioners also.
I am not going to argue whether they are reasonable or unreasonable, but the Minister will agree that they are very fond of their revenue.
I think you can make a bargain with them, too. I have often heard of that.
SECTION 6.
I move amendment No. 1:
In page 3, Section 6, line 37, to delete the words "or by an officer of".
In Section 6, provision is made for restricting the type of person who would carry on the business of house agent or auctioneer. After the date fixed by the Act, it will be unlawful to carry on without a licence or a permit, but there are certain exceptions. Sub-section (2) of this section provides that certain defined classes of persons may carry on the business of an auctioneer without being the holder of an auctioneer's licence.
One of the categories referred to is the sheriff or an officer of the sheriff or under-sheriff or county registrar. As I said on the last occasion, I can see a case for providing that the sheriff, under-sheriff or county registrar should be free to carry on an auction without having to provide himself with an auctioneer's licence, but I take strong exception to the provision which says that an officer—undefined—of the sheriff, under-sheriff or county registrar may be free to carry on an auction without becoming the holder of an auctioneer's licence. I cannot see what the Minister gains by the provision. It is loose and indefinite. It enables the sheriff or the county registrar to appoint any type of person to carry on an auction in the case of a seizure. I do not think any hardship would be inflicted if we insisted that where there is a seizure the auction should be carried out by the sheriff, under-sheriff or county registrar. After all, when you are dealing with seized goods you are handling the property of another person. Take it that the sheriff goes out to execute a decree for £50 and seizes a motor-car value for £250. If some irresponsible person is put in charge of the auction we have no guarantee that he will not make an arrangement with somebody to have the car knocked down for a bid of £50. That would be a good bargain to get a car valued for £250 for £50. Therefore I think that these auctions should be carried out by responsible persons upon whom we can rely and that this particular provision should be deleted from the Bill. I think that, in fairness to the public, the Minister should agree to that, particularly where you are dealing with seized goods.
The position, I suggest, is not as Senator Duffy has put it. Supposing the sheriff appoints Paddy Murphy to carry out a sale for him, and if Paddy Murphy works a quick one in the way described by Senator Duffy, then it is the sheriff who remains personally liable at law for anything irregular that may occur. It does not matter who carries out the sale, the sheriff remains responsible.
That is the position. The sheriff is liable all the time.
Amendment, by leave, withdrawn.
I move amendment No. 2:
In page 3, Section 6, lines 42-43, to delete the words "or by any person authorised by him".
The same point arises in this amendment as in the last one, except that here we are dealing with a rate collector. The rate collector "or any person authorised by him" is excluded from the provisions of the Bill requiring him to hold an auctioneer's licence. I am not objecting to the rate collector being granted that permission. What I am arguing is that it is unreasonable to go further and say that any person appointed by the rate collector can act as auctioneer without a licence. Is there any reason why, if a rate collector is unable to carry out an auction, that the work would not be handed over to a licensed auctioneer? I suggest the provision in the Bill is being carried too far. It will leave openings for the appointment of irresponsible people to carry out auctions where seizures are made by rate collectors.
I am not as happy about this amendment as the last one because I do not know if a rate collector has the power to delegate his right to make a seizure and carry out a sale.
The rate collector is employed by the local authority. I know, of course, he has authority to make a seizure for unpaid rates, and also how that works. If a farmer does not pay his rates the rate collector seizes some of his live stock and turns them into the local pound. After due deliberation the owner comes along, having somehow found the sum due to the rate collector, pays up, and the cattle are released to him. It seems to me that if the rate collector is himself unable to carry out a sale of seized property he ought to be required to get the sale carried out by a licensed auctioneer.
It seems to me, from the reading of the section, that if a person authorised by a rate collector to carry out a sale has not that right at present, the section does not confer it on him.
It enables a rate collector to appoint a person who is not the holder of an auctioneer's licence to carry on a sale. I move to report progress.
Progress reported: debate to be resumed on first sitting day of next week.
The Seanad adjourned at 10.30 p.m. until 3 p.m. on Thursday, 20th March, 1947.