Investing in art can be a lucrative business, but it is not entirely risk-free. The sale or purchase of works of art still sometimes leads to disputes between the parties involved, especially when art is purchased remotely.
Examples include disputes regarding the artwork’s provenance, age, attribution, quality, and selling price. A comprehensive purchase agreement can protect both buyer and seller from time-consuming and costly legal proceedings arising from misunderstandings, misplaced expectations or incorrect statements.
The principle of freedom of contract is a fundamental principle of Dutch contract law. It implies that, in principle, parties are only bound by the rules they have mutually agreed upon. In the event of a dispute over the interpretation of a contract, the intentions of the parties involved and their legitimate expectations of each other are decisive. While it is not required that an agreement is in writing, without a written agreement, it will be extremely difficult to prove what the rules are that the parties have agreed between themselves.
Contracts between a professional party and a private party are governed by consumer law. This entails greater responsibilities for a professional party, all the more so when selling artworks online. It is therefore important to fulfil all information obligations in order to be confident that the sale has become irrevocable.
When carefully negotiated commercial agreements between two professional parties are in dispute, great weight attaches to the linguistic meaning of the agreement. In such a case, parties bear a heavy burden of proof to successfully demonstrate that their intentions differ from the linguistic interpretation of the agreement. Expert advice on the wording of commercial agreements is therefore invaluable in ensuring that the wishes of the parties involved are accurately recorded.
Transnational transactions account for an increasing share of trade in art. As a result, parties increasingly face legal actions outside the jurisdiction of their home state. In principle, the legal relationship between parties from different countries is governed by the rules of private international law. However, this is not the case when the parties have made an express choice to apply a particular law.
To avoid unpleasant surprises, parties are advised to include choice of forum and choice of law clauses in the contract. Nevertheless, International treaties and EU law may take precedence over national law (even in the case of a choice of law clause). For example, the so-called Vienna Sales Convention (CISG) may apply to international transactions between professional parties who are both domiciled in a country party to the CISG. This convention has been ratified by a large number of European countries, including the Netherlands.
Do you have a legal question or want advice? If so, please feel free to contact us.
GMW lawyers will be happy to help you with all your art law issues.
Do you have a question? Feel free to contact us.
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