Going to an art fair any time soon? We asked Nicholas O'Donnell, partner at Sullivan & Worcester LLP and leader of the firm’s Art and Museum Law practice, on the legal consequences of buying art at a fair.
Consider The Location Of The Art Fair
The interaction between a client and a dealer, whether at a brick and mortar gallery, or an art fair, is the commencement of a legal relationship which can be affected by the fact that it is created at an art fair, rather than in a storefront.
In the absence of an agreement, in most instances for the sale of art the place of the transaction will supply the law that governs that transaction, but if the event is an international art fair (i.e. TEFAF in Maastricht, Art Basel in Hong Kong) you may be subject to the law of that jurisdiction, not your own.
The location will also be important to any subsequent disputes of ownership, particularly over provenance concerns or Nazi-looting issues. In New York and elsewhere in the United States, a thief—or his good faith successor—cannot pass good title. In Maastricht a good faith subsequent purchaser will prevail.
Doing Your Due Diligence
When does the buyer have time to investigate at an art fair, and what are the consequences of proceeding with the transaction? Is there anything in the materials in which a buyer agrees to a set of terms incorporated by reference? If so, those rules will be a part of your deal.
If you’re in a U.C.C. jurisdiction, like New York, the mere exchange of information will give rise to enforceable obligations related to that exchange if there is ultimately an agreement. One can well imagine how this will play at an art fair rather than a gallery. Hundreds of people are passing a booth each hour. Which conversation becomes “part of the bargain”?
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Consider a scenario. In a conversation at an art fair booth, the buyer observes a signature at the lower portion of an etching that looks to her, a sophisticated buyer, to be Picasso’s. She asks the dealer, what is that? “That’s signed Picasso” he says. Or did he say “that’s signed BY Picasso?” or did he say “that SAYS Picasso”? Do either remember accurately? This has happened, and can lead to thorny disputes.