retempering

[peterqu]

On a recent visit to Japan I purchased a katana from a well known dealer only to be advised by my Japanese polisher that the blade had been retempered. I attempted to cancel the deal and obtain a refund which was declined on the basis that I had handled and examined the blade and consequently must accept responsibility for for the condition.For the sake of this discussion let us assume that the dealer is an expert and that he knew or should have know that the blade had been retempered.I know that some big name blades have been retempered and are valued but this not one of those and is a mumei Koto blade.I am really looking for a general response on the ethics (do they exist?) involved in the transaction.Firstly , does retempering constitute a material defect affecting the value of the blade and secondly is there a duty on the dealer to disclose that the blade has been retempered.I would mention that I was with two other collectors and that none of us detected the blade condition .Peter

[John A Stuart]

A saiha blade should definitely ethically be revealed as such. The only case would be where the dealer did not know, and, then ethically should make reparation if proved so later. It has been said that a third of blades outside of Japan may be saiha. John

[loiner1965]

http://www.nihontocraft.com/Yakinaoshi.html

years ago i nearly bought a masamura which was involved in a fire or had been retempered......wish i had now

[peterqu]

Hi Steve,The Nihontocraft article makes interesting reading.Whilst I respect your opinion I must reply that it seems that you had the benefit of knowing that the Mura masa had been retempered and chose not to purchase.Personally I see no point in paying for a blade that has no market value and may not even be described as utilitarian unless one wants an expensive metal tsunagi.I struggle with the notion that ever dealer should be distrusted but also cannot accept that ones lack of experience should make one fair game and that conduct that is generally unacceptable in the real world is acceptable in the Nihonto culture.I need some more responses to guide me as to how I should respond to this dealer.Please don't hold back.Peter

[Brian]

Peter,

I think the first thing to do is get a second opinion on the saiha. I know the polisher you are using is ultra reputable, but it would make a stronger case to have a second opinion to back this up. I would ask the polisher if there is a chance he can get a second person (togi or sword authority) to state in writing that this is saiha and explain it is to have a good case with the dealer.

I don't beleive that dealer is an expert on swords by any means. He knows armour, but I think his sword knowledge is lacking.

I should mention to the forum that this dealer is no-one we would have come across online and is relatively unknown to the Western market.

A lot depends on when the saiha was done. Was it done recently, or during the fighting life of the sword to keep it in service. The situation is also complicated by the other circumstances around the koshirae, and it is my opinion only that the blade should be kept with the koshirae even if saiha in this case, even if it means negotiating a discount for the entire package.

However I do feel that the second opinion is important for the case itself and to prevent any doubt at all. Is the dealer challenging the fact that it is saiha at all, or merely that you should have known this? If he knew it, then he should have mentioned it. If he didn't know it, and is a dealer with experience, then how could he expect you to identify it? Good point to use with him.

 

Regards,

Brian

[peterqu]

Hi Brian, The dealer in question has never disputed my claim based upon the polisher's experience that the blade is saiha so I think it reasonable to assume that he knew.He has simply replied that it is my problem.The fact of the matter is that in his profile and writings about himself he claims to be an expert in Swords and Armour.Peter

[Brian]

Peter,

In that case, and seeing as how it seems he knew, I think that ethics are out the window anyways, and I would fight to get a resolution that I was happy with if I were you.

It seems as though you are not going to win against him though in this case, but it is definitely worth pursuing and seeing if you can get a partial refund.

The amount of saiha blades out there is staggering indeed, and I can certainly believe the high figures claimed. I am sure many of them are indistinguishable too.

 

Brian

[Jacques]

Hi,

 

Peter,

 

You quote your polisher, is the blade you have bought polished or not?

[peterqu]

Hi Jacques,Yes it is good polish say 90%.Peter

[Jacques]

Hi,

 

Ok,

 

then *i think* the seller is in its right, having the blade in your hands you should have seen this flaw (a saiha is not a hidden flaw) or at least be doubtful and interrogate the seller. That misfortune is the result of a lack of knowledge (no insult intended).

 

About morality i don't know a seller who is an angel, this is contradictory with business.

 

 

I repeat its my own opinion and nothing else.

[pcfarrar]

I bought a yari from Aoi Art a number of years ago. I submitted it for NBTHK papers (it was signed Gassan Toshiyoshi). The NBTHK rejected it as saiha (mei was real) and I got my money back from Aoi Art + shinsa fee and additional compensation.

[peterqu]

Hi Jacques, I take your point but I would suggest that the test is that of " a reasonable man" and not an expert in sword matters.In other words if a reasonable man cannot detect the flaw or defect then I believe .rightly or wrongly, that there is an obligation to disclose ,much the same as with latent defects which the seller may be aware of and which are not apparent on close examination.I respond not to prove a point but simply to alert members that there is another viewpoint which provides them with a right of recourse.Peter

[loiner1965]

just as a matter of interest pete can you see the cloudiness near the habichi which i believe is a sign of retempering or what reason did the polisher give

[peterqu]

Hi Steve ,I am sorry but I cannot answer your question.The polisher only speaks Japanese and I believe that the description he gave to my Western friend who does, was simply that it was Yakinaoshi (retempered) Regards,Peter

[omorik]

Interesting discussion.

 

I think some of the priciples we have to differentiate between are ethics, law and leverage.

 

Legally, the principle is buyer beware. You bought the sword and unless there is an advertised 90-day warranty/money back guarantee, then it is yours. The seller is under no legal obligation to give you satisfaction.

 

Ethically, it would be wrong to misrepresent an item. If he knew it was a retempered blade, then ethically he would be required to disclose this. The question you are struggling with is whether the seller is an ethical businessman. There is a whole branch of philosophy called "Business Ethics". This exists to redefine what is OK and what is not OK in business, so that there is some sense to a concept which at first blush some dismiss as an obvious oxymoron. You seem to be upset because you were under the impression he was a reputable dealer and have found that he may not be.

 

Leverage. If you give me a lever long enough I can move the world. What is your leverage in this situation? On the basis of what has been discussed previously I suppose I would be more inclined to do business with Aoi Art. Business is about making money. You could contact the dealer and say that:

 

First class people do business with first class people, second class people do business with third class people. There may have been a language barrier in your dealings, but you were under the impression that he was a first class dealer.

On an INTERNATIONAL Nihonto discussion group message board you discussed your experience. We are very interested in learning about dealers we should avoid and delighted to learn of dealers we can trust. If he is interested in having satisfied customers that give good recommendations (and don't give bad recommendations), at the very least he can give you a store credit you could use to purchase another sword you would be happier with. It would be good for his business since members of NMB do buy swords. Hopefully you can negotiate a fair outcome that will allow you to endorse this "well known dealer."

 

My 2 cents worth.

 

Best of luck,

 

Omorik

[peterqu]

Thank you for that Ormorik.I agree with much of what you have stated.He obviously regards himself as a dealer of good repute and I am optimistic that he will do the right thing.I have made him a settlement proposal and will revert to the Forum in due course.As far as leverage is concerned he will be advised at an appropriate time that there are so far 150 members from all around the world who have followed this discussion , are anxious to know his name and to hear of the outcome.Regards,Peter

[shan]

Hi All,

Well these are all good opinions but as such do not actually get any resolution to this problem, so when a certain lack of ethics is shown then a certain lack of ethics is called for i would guess.

Tell the seller that you are in contact with a great many US, Canadian and European collectors and if this is his intended sales pattern and guarantee, then you feel it a necessity to advise all of these people of his decision regarding the blade so that they do not fall prey to this themselves.(Point him to the forum if you have to and its permitted by the owners)

 

If Mizukage was not totally obvious then I can understand ,but your defense is likely Tenuous at best even so,If it was then oops!!, but we must also note that certain schools were noted for producing the effects of mizukage such as the hizen Tadayoshi and Horikawa so this is not in itself proof of retempering.(1st defence?)

Is there Mizukage and if so what was the attribution based on the sellers knowledge? What was the written description?

I believe that if a seller has included certain information in the description to assist in the buyer’s belief that the seller was knowledgeable in these items and to assure the item was of the value suggested by the pricetag, with this information supplied, then omitting the relevant conditional reports cannot be an acceptable defence.

I.E If the seller stated the item was flawless and it had hagire that was not evident at the time of purchase to you then it is at his discretion as to whether he refunds or not.(it is sometimes a better solution to just go for an exchange and hope for the best)

First try tact,then try to appeal to there better nature,then become Devious and look for an equal value exchange,then when all else fails and you have nothing to lose.... get Downright Nasty.(lets face it... you wont buy from them again anyway)

P.s I am probably just talking rubbish and if so please ignore and i beg your forgiveness (my "get out of jail free card" i have adopted)

regards

shan

[Ted Tenold]

  peterqu said:

I attempted to cancel the deal and obtain a refund which was declined on the basis that I had handled and examined the blade and consequently must accept responsibility for for the condition.

 

Without putting too fine a point on it, the dealer does have point. Like just about everything else, the sword market is based on caveat emptor. Since you had the ability to inspect the sword beforehand, and make a decision in the presence of the dealer, it's a bit hard to come back after the fact. The polisher's discovery is post deal. Had the deal been predicated on the polishers opinion, then it would be a different story.

 

  Quote

For the sake of this discussion let us assume that the dealer is an expert and that he knew or should have know that the blade had been retempered.

 

Conversely, we could assume that the dealer did not know it was retempered. Therefore he sold it in good faith. Proving fraud would be very difficult to impossible. What you are referring to here is "disclosure", while the other side of that balance beam is "due diligence" which falls upon you.

 

  Quote

I am really looking for a general response on the ethics (do they exist?) involved in the transaction.

 

The thing I see you have a problem with is not whether he knew the blade was saiha or not. It's a matter of his customer service policy that comes into question, and for him this is a business decision. So ethics plays a part, but if the guy genuinely did not know the sword was retempered, then arguably, he may feel justified in his decision and thus feel no compulsion to take back that which he sold in good faith to a client who had the benefit of inspection prior to purchase.

 

  Quote

Firstly , does retempering constitute a material defect affecting the value of the blade and secondly is there a duty on the dealer to disclose that the blade has been retempered.

 

Not sure in legal terms how "material defect" would be defined in an antique sword not longer used for intended purpose. Unfortunately, I know of no hardfast code of ethics in the art world that would bind any dealer to disclose anything about a sword. This is not real estate, and thus is not bound by the regulation that one can expect and find when buying a house. You should consult legal counsel regarding your rights and responsibilities.

 

  Quote

I would mention that I was with two other collectors and that none of us detected the blade condition .

 

This is kind of where I'm going. All together there were four pairs of eyes on the sword prior to purchase and no one called out "saiha". It was either very poorly lit, a really good retemper job, or too little knowledge as to what symptoms to look for.

 

Don't get me wrong here, I'm not trying to admonish, defend, or accuse. I'm mearly expressing my view of a problem I've seen before in *both* cases; dealer knew and sold it anyway, dealer didn't know and sold it. However in both scenarios, the buyer has to know what they are getting and resolve themself to it regardless of any possibility of recovery after the fact. I know dealers that will take it back for ANY or NO reason at all within a certain amount of time which is generally quite lenient, but that is a customer support choice. It sucks that the blade is retempered, and you found out after the fact. But in the face of your decision to buy it, you share the blame to some degree whether the dealer knew or not.

 

My advice is; definately get a second opinion on the blade by another polisher or appraiser. If you can find a third party that has no equitable interest in it, then even better. As it stands, it is the polisher's opinion vs. the dealer's. If the blade is indeed determined to be saiha, try to settle the matter through sharing the loss somehow with the dealer. A refund, a credit for future purchase, whatever. At that point, the seller's decision will tell you how enthusiastic they are to remedy a problem for a client.

 

Threats rarely make any difference and indeed just tend to make things worse. Expend all reasonable effort to resolve it with calm and civility. If no ammenable solution can be reached, then learn from it and move on. Without conclusive proof that the problem was known to the dealer when he sold it, making accusations or public notices may end up marking yourself for possible legal problems of your own.

 

Just my opinions.

[peterqu]

Thank you all for your sound advice.Let's see how it pans out.Perhaps later I will set the scene of the examination and give reasons so that we can all learn from this experience.Peter

[loiner1965]

do we know the mei on the sword peter

[peterqu]

Mumei

[loiner1965]

  peterqu said:

Mumei

so we cannot tell if it was intentional....do you have any smith in mind

[Carlo Giuseppe Tacchini]

Hi Peter.

 

Before to go to the Triarii (italian joke that means extrema ratio solutions), read this...

 

A man some years ago needed a good persian carpet for his living room.

 

He felt himself quiet knowledgeable on the matter (to be proven wrong later) and went to

  peterqu said:

a well known dealer

, 100% persian, for his purchase.

He asked for a Tabriz, xxx raj (quality), yyy dimensions, not exceeding the budget of zzz.

The dealer showed him a few and he took the one he felt more comfortable with.

At home his interior designer said "You got crooked ! The borders aren't aligned (well, slightly, but they aren't) and that's

unacceptable on a newly made carpet of this quality !".

 

The man didn't check the borders because the floor in the shop hadn't lines to check with and all the

other carpets, being antiques, had disaligned borders...

 

The seller showed to the man what he asked for, the man decided on his own based on his (then) available knowledge.

Now, how to get out from the situation ?

 

"Hi mister. I made a mistake. I didn't check the borders, that being a newly made carpet should be perfectly aligned...

(no doubts the seller knew this...). Well, are you willing to allow me to change my purchase with something a little more

expensive, with compensation of course, to make me an happy customer of yours ?"

 

Now they'r good friends by years and the man bought other 3 carpets from the same seller, one of which is the "doomed"

that, finding no other purchasers, was sold at 1/3 the price two years later.

[peterqu]

Hi Carlo, Have no fear,I am not about to wade in with fists flying.That is not my style.I have a pretty good idea where this is going and what concessions need to be made .Hope I am not mistaken. Watch this space!

[Carlo Giuseppe Tacchini]

Wish you good luck.