Articles

Passion before a fall

Release Date:	01 May 2006
Author:	Karen Sanig
Original Publication:	Canvas Volume 2 Issue 3 (May/June 2006)

caveat emptor! Karen Sanig discusses the legal aspects of purchasing works of art.

TEXT BY KAREN SANIG
PHOTOGRAPHY COURTESY OF CHRISTIE ’S

Buyers of art and antiques beware! The excitement of an acquisition can all too often lead to negligence of the more mundane details of a purchase. After all, this is a time to reflect on the splendour of the piece you are purchasing and to think about where you will display it. Understandably, this is not the time to consider the finer points of the contract of sale despite the often substantial sums of money involved. However, failure to do so can lead to disastrous consequences. The purchase of art contains many potential hidden pitfalls. Even the most seasoned of collectors can fall foul of the vagaries of the art market. Consider the following non-exhaustive checklist and bear it in mind prior to purchase. High on a buyer’s list of priorities should be the condition of the piece in question.

Following a purchase at auction, would anyone want to take delivery of their Picasso only to find a hole in the middle of it? Carry out a thorough check of the art personally as well as with preferably an appropriate expert from the art world. If buying at auction, remember to ask for a condition report. This is a document prepared by the auction house and available before the sale and usually highlights any issues relating to condition of the lot.

The issue of provenance can also be a cause for concern. A collector would not want to acquire a Fabergé egg only to discover that it had been stolen from a New York museum some years earlier and that the museum was still seeking its return. Nor would a buyer want to acquire a 20th century Impressionist painting to find that it had been illegally expropriated from its owners and then illegally exported from its country of origin. The ownership and exhibition history of art and antiques are important factors in determining value and authenticity. A prospective purchaser must establish the chain of ownership as thoroughly as possible. This is essential for ensuring that the current seller is the genuine owner and/or has the right to sell. If representing the owner, ensure that the seller is authorised to sell on their behalf and ask to see evidence of this. A common misconception is that if one buys in good faith, one cannot be sued. This is not the case.

Consider the disappointment a buyer would feel if their newly hung Van Dyck masterpiece for which they had paid over £1 million was not painted by the master after all. Attribution is yet another aspect of the practice of art acquisition that must be investigated prior to purchase. Do not rely on the seller alone; seek the advice of an expert before buying. There is a wealth of expertise available online, in libraries and in person from art historians, conservators and organisations formed for the purpose of attributing art to a particular artist. Concerning contemporary art, there are for example certain organisations whose official approval is required to attribute work to an artist. Without such approval (often in the form of a stamp or certificate) a work of art, albeit approved by many scholars, is not worth its market value as an original. Also look out for descriptions in sales’ catalogues. Unless a work is said to be by the artist (whether a sculptor, furniture maker, designer, etc.) or the artist’s name alone appears next to the description of the artwork, then it is not being sold as a work by that artist. The use of words such as ‘after ...’ or ‘in the school of...’ signify that the work is not by the artist’s hand but in his style. Be especially careful not to be confused by the language applied to the descriptions. The terminology of the art world can often seem incredibly vague or excessively specialised and can confuse even native speakers of English. One US collector did not distinguish between the words ‘by Van Dyck’ and ‘after Van Dyck’ in a sale catalogue and subsequently paid far in excess of the real value of the painting which he could then not return to the dealer.

‘Lovers’. Sadegh Tabrizi. Iran. Oil and gold paint on canvas. 45 x 35cm.

The international art market is littered with fakes and forgeries, so guaranteeing the authenticity of a work is a paramount objective. Some are so good that they have fooled experts for years. Others are obvious. Take for example the haul of illegally exported Egyptian antiquities which arrived in the UK. Even their provenance had been forged. Historical documentation made to look authentic was produced to prove their alleged ownership. After much testing and reviewing, experts at the British Museum in London discovered that the artefacts were genuine. It transpired they had been illegally excavated from undiscovered tombs in Egypt and made to look like tourist trinkets to allow for their illegal export from Egypt. They have since been sold all over the world and the arduous process of recovery and repatriation is still continuing.

Ask for and check all accompanying sales documentation of an artwork. Most countries have strict export laws. Prior to purchase, request to see export licences and check that the description on them matches the purchase. No one wants to be tied up in legal action over the purchase of cultural heritage property. Remember, good faith alone is no defence. To avoid future disappointment, it may be wise to seek a second opinion from a leading expert concerning the value of the item of purchase. Often there are no guarantees from dealers or from auction houses in relation to the prices quoted. In legal terms, auction houses are simply middle men so it is important to read the small print carefully as the liable party will not be the auction house but the seller. Any complaint to the auction house will simply be passed on. Be sure to carry out private checks and invite an independent advisor to view any prospective purchase.

If the acquisition of the piece has been dissatisfactory and attempts to resolve the situation with the seller have not worked, the longer the problem is left, the harder it will be to settle. The right of an aggrieved purchaser to bring legal action can easily be lost through delay. In the UK for example, the usual rule is that it is only possible to bring an action within six years of the purchase. There are exceptions but they are difficult to enforce. Sometimes, despite the best efforts, problems only surface after purchase. The more information gathered when acquiring art and antiques, the better position the
buyer will be in. Most galleries, dealers, auction houses and private sellers are only too happy to impart their knowledge of the art and antiques on sale, but only if asked. If mixing of the mundane with the aesthetic will taint the pleasure of acquiring art, seek advice. Experience shows that it is far harder to resolve an issue after the purchase than before it. A buyer may think they have obtained all legal rights to the purchased art but that is often not the case. Art transcends national boundaries and so do the laws that apply.