HB 1271-1_ Filed 04/13/2009, 09:50 Tallian
Adopted 4/13/2009

SENATE MOTION


MADAM PRESIDENT:

    I move
that Engrossed House Bill 1271 be amended to read as follows:

SOURCE: Page 1, line 14; (09)MO127102.1. -->     Page 1, line 14, delete "Art Dealers and Consignment of Art" and insert " Retail Consignment Sales".
    Page 1, line 15, delete "subsection" and insert " subsections".
    Page 1, line 15, after "(b)" insert " through (d)".
    Page 1, line 16, delete "works of art" and insert " an item".
    Page 1, line 16, delete "an art dealer" and insert " a retail merchant".
    Page 2, line 1, delete "a work of art" and insert " an item".
    Page 2, delete lines 3 through 9, begin a new paragraph, and insert;
    " (c) This chapter does not apply to an item offered at auction, or held by an auctioneer before or after being offered at auction.
     (d) If a provision of this chapter conflicts with the Uniform Commercial Code (IC 26-1), the Uniform Commercial Code controls with respect to that provision.".
    Page 2, line 10, delete "Sec. 4." and insert " Sec. 2.".
    Page 2, line 13, delete "Sec. 5." and insert " Sec. 3.".
    Page 2, line 19, delete "Sec. 6." and insert " Sec. 4.".
    Page 2, line 20, delete "an artist and an art dealer" and insert " a consignor and a retail merchant".
    Page 2, line 20, delete "the art dealer" and insert " the retail merchant".
    Page 2, line 21, delete "artist's work of art" and insert " consignor's item".
    Page 2, line 23, delete "a work of art" and insert " an item".
    Page 2, line 24, delete "Sec. 7." and insert " Sec. 5.".
    Page 2, line 26, delete "Sec. 8." and insert " Sec. 6.".
    Page 2, line 30, delete "a work of art" and insert " an item".
    Page 2, delete lines 34 through 42, begin a new paragraph, and insert:
    " Sec. 7. As used in this chapter, "retail merchant" means a retail merchant making a retail transaction as described in

IC 6-2.5-4-1.".
    Delete page 3, begin a new paragraph, and insert:
    " Sec. 8. (a) When a person delivers an item to a retail merchant for the purpose of:
        (1) sale;
        (2) exhibition; or
        (3) sale and exhibition;
for a commission, the delivery to and acceptance of the item by the retail merchant places the item on consignment, unless the delivery is under an outright sale for which the person receives full compensation for the item upon delivery.

     (b) A retail merchant described in subsection (a) is the agent of the person with respect to an item described in subsection (a).
     (c) An item described in subsection (a) is trust property and the retail merchant is trustee for the benefit of the person until the item is sold to a bona fide purchaser or returned to the person.
     (d) Except as provided in subsection (e), this subsection does not apply to a deposit placed by a customer on an item. The proceeds of the sale of an item described in subsection (a) are trust property. The retail merchant is trustee for the benefit of the person until the amount due the person from the sale is paid in full. Unless the retail merchant and the person expressly agree otherwise in writing:
        (1) a retail merchant shall pay the person the proceeds of the sale of an item not later than thirty (30) days after the retail merchant receives the payment; and
        (2) if the sale of the item is on installment, the retail merchant shall first apply funds from an installment to pay any balance due to the person on the sale.
The terms of an express written agreement that alters a provision set forth in subdivision (1) or (2) must be clear and conspicuous.
    (e) If:
        (1) a customer who has placed a deposit on an item purchases the item; and
        (2) the customer's deposit is used in whole or in part to pay for the item;
the deposit shall be treated in accordance with subsection (d).
    (f) Except as provided in subsection (g), if an item is lost or damaged while in the possession of a retail merchant, the retail merchant is strictly liable for the loss or damage in an amount equal to the value of the item as set forth in section 11(a)(1) of this chapter.

     (g) A retail merchant is not liable for the loss of or damage to an item in the retail merchant's possession if:
        (1) the loss or damage occurs more than thirty (30) days after:
            (A) the date by which the person must remove the item, as specified in a written agreement between the retail merchant and the person; or


            (B) the date on which the retail merchant sends written notice to the person by registered mail at the person's last known address that the person must remove the item, if a written agreement described in clause (A) does not exist; and
        (2) the item was in the retail merchant's possession at the time of the loss or damage because the person failed to remove the item.
".
    Page 4, delete lines 1 through 32.
    Page 4, line 33, delete "Sec. 11." and insert " Sec. 9.".
    Page 4, line 33, delete "work of art" and insert " item".
    Page 4, line 33, delete "10" and insert " 8".
    Page 4, line 34, delete "an art dealer" and insert " a retail merchant".
    Page 4, line 34, delete "work of art" and insert " item".
    Page 4, line 35, delete "artist" and insert " consignor".
    Page 4, line 36, delete "work of art" and insert " item".
    Page 4, line 36, delete "art dealer" and insert " retail merchant".
    Page 4, line 37, delete "work of art" and insert " item".
    Page 4, line 37, delete "art dealer's" and insert " retail merchant's".
    Page 4, line 39, delete "art dealer" and insert " retail merchant".
    Page 4, line 39, delete "a work of art" and insert " an item".
    Page 4, line 40, delete "artist" and insert " consignor".
    Page 4, line 41, delete "work of art" and insert " item".
    Page 4, line 42, delete "art dealer" and insert " retail merchant".
    Page 5, line 1, delete "artist" and insert " consignor".
    Page 5, line 2, delete "artist." and insert " consignor.".
    Page 5, line 3, delete "art dealer" and insert " retail merchant".
    Page 5, line 5, delete "Sec. 12." and insert " Sec. 10.".
    Page 5, delete lines 7 through 41 and insert:
    " retail merchant.
     Sec. 11. (a) A retail merchant may accept an item for commission on consignment from a person only if, not later than seven (7) days after accepting the item, the retail merchant enters into a written contract with the person that specifies the following:
        (1) The value of the item.
        (2) The time within which the proceeds from the sale must be paid to the consignor if the item is sold.
        (3) The commission the retail merchant is to receive if the item is sold.
        (4) The minimum price for the sale of the item.
        (5) Any discounts ordinarily given by the retail merchant in the regular course of business.

     (b) If a consignor violates this section, the consignor may bring an action in a court with jurisdiction to void the consignor's contractual obligations to the retail merchant. A retail merchant who violates this section is liable to the consignor in an amount

equal to:
        (1) fifty dollars ($50);
        (2) any actual, consequential, or incidental damages sustained by the consignor because of the violation of this section; and
        (3) reasonable attorney's fees.
".
    (Reference is to EHB 1271 as printed April 10, 2009.)

________________________________________

Senator TALLIAN


MO127102/DI 106
2009