Purchase and sale agreements

There are a number of serious situations that can arise when artworks are bought, leading to disputes between purchaser and seller, especially when art is procured remotely.  Instances include incorrect description, time-period, attribution, authenticity or only partial disclosure of the condition of the work.  A comprehensive purchase and sale agreement can protect both buyer and seller from time-consuming and costly disputes arising from misunderstandings, misplaced expectations or inaccurate statements.

Freedom of contract is one of the fundamental principles of Dutch commercial law impacting purchase and sale agreements. In principle, this implies that parties are only bound by rules agreed between themselves. In the case of a dispute concerning the interpretation of a contract, the intentions of the parties and their legitimate expectations from each other are decisive.  Without a written agreement, demonstrating the agreed rules is extremely difficult.

For specific agreements between a professional party and a private individual, mandatory consumer law is applicable. This carries greater legal responsibilities for the professional seller than the private purchaser, even more so with online sales.  Ensuring that all obligations are met in the sales agreement provides assurance that the transaction is complete and inviolable.

When carefully negotiated commercial contracts between parties operating in a professional capacity are at dispute, the linguistic meaning of the wording carries greater weight than an agreement involving a private person.  Even though parties have the opportunity to demonstrate that their intentions differ from the linguistic interpretation, this carries the weighty burden of proof.  Expert advice on how commercial contracts should be phrased is invaluable to ensure the wishes of the parties are accurately captured.

As international transactions comprise a growing proportion of the trade in art, parties can be confronted with legal actions outside of the domestic jurisdiction of their home nation state. The legal relationship between parties in different nations is governed by rules of private international law, unless they have agreed to abide by the laws of a particular country. In order to avoid any unpleasant surprises, parties are recommended to make unambiguous, written agreements that include choice of law and choice of forum clauses. However, international treaties and EU law can take precedence over national law (even in the case of choice of law provision). The Vienna Convention (CISG) could be applicable in international transactions between professional parties that are both established in a country that is party to the CISG. The Netherlands is signatory to the CISG. Receiving advice over international art transactions is recommended to ensure the applicable law is clear and understood.

For more information or assistance with art purchase and sale agreements, please contact us.

You may also enjoy these articles

Good time to buy art
French court Pissaro case