Buying art at auction – an art lawyer’s guide

Image source Brian Turner

With the summer auctions nearly upon us, Boodle Hatfield’s Becky Shaw has put together an art lawyer’s guide to buying art at auction.

Our first and fundamental tip is research! In an auction, a binding contract is made when the gavel falls, so you need to have done all of your research before then. What this entails will depend on the value of the item.

Catalogue

Check the auction catalogue entry very carefully:

• If there is a bibliography (which is often the case for higher value paintings), check the references as far as possible, and ideally consult each book listed, to ensure that nothing has been missed or misquoted. Many books can be found at the Witt Library or National Art Library. Whilst there, have a look at other catalogue raisonnés for the artist to see if they mention the painting.
• Ensure that you understand the meaning of all of the terms used – ‘Attributed to’, ‘Studio of’, ‘Style of’, ‘Follower of’ and ‘After’ all have specific meanings. Look up any terms you are unsure about in the glossary at the back of the catalogue. For high value items, it may be worth seeking a second opinion on attribution from an external expert.
• Similarly, check the meaning of any symbols (such as small squares, circles, or dots), which might denote, for example, that the item has a reserve, has a guaranteed minimum price, or is made of a material which may be subject to import or export restrictions.
• Check in the back of the catalogue whether there is any significance to the item’s description being in bold or upper case type, as this can determine whether the auction house’s warranty or guarantee applies.
• Look into the exhibition history for the item, which may be listed in the catalogue or which can be uncovered from research. How and where the item has been exhibited in the past can affect its value.
• Try to find out about the provenance of the piece. The seller’s identity is usually confidential but some information about provenance may be included in the auction catalogue, for example, if the item was an integral part of an important historic collection or estate.

Condition

Ask the auction house whether there is a condition report for the painting, and request one if so. For high value paintings, consider approaching a conservator to determine whether cleaning or restoration will be needed following the sale, and how much this might cost. It is also worth asking whether the painting has been cleaned or restored in the past, and whether this has improved or damaged it.

Check the conditions of sale

Conditions of sale are at the back of the auction catalogue. These include logistics such as paying for and collecting the item and what happens if you do not do so in the required timescale, and also provisions for when things go wrong. For example, if the item is lost or damaged, if the item is not as described, or if the item is a forgery.

Limits and exclusions to the auctioneer’s liability are also set out in the conditions of sale and are important to consider. If something does go wrong and you need to rely on these exclusions, the auction house must show that the limits and exclusions to its liability are ‘reasonable’ according to specific criteria. If the auction house cannot show this, then it may be unable to rely on the exclusion, so if something does go wrong, it is worth seeking legal advice on your position.

Export licences

If you are planning to export the item, check whether there are any export restrictions. Export licences are required for certain art works and other cultural goods which are more than 50 years of age and valued above specific financial thresholds. Items requiring an export licence may be referred to a reviewing committee and, if certain criteria are met, could be prevented from export and offered to national museums for purchase – a process which can take several months. If you are unsure, seek further information from the Arts Council or legal advice.

View the item

Viewing the item in person prior to the sale is highly recommended and the auction catalogue will list the exhibition times. Take someone with you for a second opinion. While at the auction house, you may be able to ask auction house staff about the item.  You can usually ask for the work to be taken off the wall so that the back of the painting can examined.

Register for the auction

Buyers have to register to bid and there are different ways in which you can bid at auction, for example, in person, on the phone, online, or by leaving an absentee bid. Contact the auction house for more information about registering and bidding and the deadlines for doing so.

Decide how much to bid

If you are trying to decide how much to bid, check previous auction sales results, and resources like ArtNet for previous (public) sale prices for other works by the artist. Note there may be a reserve on the item which is confidential, but which cannot exceed the lower estimate.

Check for last minute changes to the catalogue

Before bidding, check for any auction house notices or changes to the catalogue entry for the item. These might be changes to the description or details about the item, or could inform you that the item has been withdrawn.

Beware of additional charges

Before you get carried away with the bidding, remember that in addition to the hammer price, buyers will usually have to pay buyer’s premium (which is a percentage based on the value of the item), and possibly other charges including VAT, artist’s resale right (a royalty payable to artists on the second and subsequent sales of their works, during their lives and for 70 years after death and to the estates of artists who have died within the previous 70 years), import/export tax, and any other taxes which might apply.

You can now sit back, relax and enjoy bidding for your item. Happy bidding.

Becky Shaw is a solicitor in the Art Law team at Boodle Hatfield. She can be reached by email: [email protected]. Visit Boodle Hatfield’s dedicated art law blog at www.artlawandmore.com