Sale and purchase
Due to the unique nature of the art market, issues regarding the quality, ownership, and description of objects often arise.
Any contract for sale will include an implied provision stating that the seller has the right to sell, that the buyer will have quiet possession, and that the property is free from any charges or encumbrances that were not disclosed to or known by the buyer (unless otherwise agreed).
According to the Consumer Rights Act of 2015, products must be as advertised, of acceptable quality, and fit for their intended use. The Sale of Goods Act of 1979 impliedly warranties regarding quality and suitability for purpose in business-to-business transactions.
The Consumer Rights Act of 2015 mandates that products, including art, must meet standards of accurate description, acceptable quality, and fitness for purpose.
Additionally, business-to-business transactions fall under the Sale of Goods Act 1979, which implies warranties for quality and suitability for purpose.
Registration of artwork
With a few exceptions, artwork cannot be registered as owned. However, owners and insurers can voluntarily register their works on the Art Loss Register, and if an artwork is stolen, it can be reported to both Interpol and the Art Loss Register.
“The largest private database of stolen art, antiques, and collectables in the world is maintained by the Art Loss Register, the leading due diligence provider for the art market.” Typically, buyers will conduct due diligence on ownership, authenticity, condition, provenance, and legal export in addition to searching the Art Loss Register.
According to English law, a good title does not transfer when a stolen art object is sold to a third party. As long as the buyer bought the goods in good faith, any claims must be made within the six-year statute of limitations. Any claim made by the original owner after that point will be forever banned. The more forgiving standard found in section 32(1) of the Limitation Act 1980 applies to restitution claims resulting from mistakes; for further information, see Practice Note: Limitation—fraud, wilful concealment and error.
Other contractual terms
When the risk of loss or damage to the relevant object falls to the buyer, buyers and sellers of artwork must agree. This usually occurs at the time of delivery in business-to-business transactions. Under consumer contracts, it is customary for the artwork to be the seller’s responsibility up until the buyer acquires possession of it.
Although the big English auction houses usually offer five-year guarantees from the date of sale, the vendor does not always guarantee authenticity. If the seller misrepresents an artwork’s authenticity and the court determines that this was not the case, the seller may be liable. Alternatively, if the seller or the relevant auction house assumed responsibility for the buyer, there may be a negligence claim. For more information, see the section below.
Art-related transactions involving loaning, storing, or shipping
When storing, lending, or transporting artwork, the law of bailment may be applicable.
When a “bailee” willingly takes possession of another person’s property without becoming the owner, it is a bailment. This creates rights and obligations for both the “bailor,” who gives up custody or possession of the property, and the “bailee,” who ensures the property is kept safe.
Export and import
Exporting cultural products from the UK will require a temporary or permanent licence if they exceed the age and value requirements. Arts Council England’s Export Licensing Unit grants these licenses on behalf of the Secretary of State.
The export control system’s dual goals are to guarantee the export’s legality and to give the UK the chance to keep cultural items deemed to be of exceptional national interest that would otherwise be exported. With every application for an export licence, the system is intended to relatively balance the different interests involved.
The Reviewing Committee evaluates cultural objects against three criteria (the ” Waverley”) to determine if they are national treasures and whether their removal from the UK would be unfortunate. Is the object directly related to our country’s history and way of life? Is it imperative aesthetically? Does it have exceptional value for studying a particular art, science, or history field?
Import limitations will also apply to anyone attempting to enter the UK with specific types of cultural property.
Cultural objects are subject to specific laws, including the Dealing in Cultural Objects Offences Act 2003, the Cultural Property Armed Conflict Act 2017, and resolutions from the UN Security Council concerning, among other things, import restrictions on goods originating from Syria and Iraq.
Should you need further guidance please feel free to contact Frei Solicitors.
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