At the beginning of September 2019, in what seems like a world away now, I wrote an article at the start of the auction season with some tips for bidding. The first and foremost of these was “Look before you buy”. This was because at that time, lots at auction were generally sold on the basis that prospective buyers had inspected them in person before the sale, and for good reason: art is of course three-dimensional and the act of looking at and responding to art is a multi-faceted experience, but one must also take into account the fact that, depending on their age or material or the way they have been displayed or stored, lots up for sale may not be in perfect condition. Therefore, the major auction houses’ conditions of sale, and indeed those of other auction houses too, while not identical, all expressly state that bidders should inspect lots before bidding and convey the fact that lots are sold “as is” (the equivalent, in colloquial terms, of “warts and all”). Consequently it was expected that buyers accept the condition the lots were in at the time of the auction, which is why it is, or at least was, advisable to inspect before buying in order to be able to make an informed decision and avoid disappointment.
Now that the auction houses, as well as galleries and art fairs, are temporarily closed, art can no longer be made available for physical inspection before purchase, at least in the major sales destinations of London and New York. How then is this being dealt with in affected jurisdictions? The art world as a whole is stepping into the digital world like never before, with museums offering virtual tours of their collections and curators and experts discussing works of art on social media platforms such as Instagram, not to mention encouraging the public to recreate works of art at home and post their efforts online. In terms of buying and selling art, the auction houses in particular are extending their online sales offerings, with some sales which would have happened “live” now becoming online sales.
It should be noted that even before the current crisis, there were online sales, so these are not an entirely new phenomenon. Some recent online sales have had considerable success, so not being able to inspect lots in advance does not in itself seem to be putting buyers off. Nevertheless, prospective bidders should understand that online images of a lot may not, for instance, reflect the colours of a lot entirely accurately and may not show all imperfections. Bidders can, however, request condition reports for additional (although still not comprehensive) information, as well as supplementary high-resolution images.
Moreover, amendments have been made to terms and conditions to recognise the specific circumstances we find ourselves in, albeit with some differences in approach. Looking at the online sales available on various auction houses’ websites at the time of writing, some are upfront about the changes they have made in light of the COVID-19 pandemic; for instance, it is noted in relation to one online sale in New York that although due to the restrictions lots cannot be made available for inspection beforehand, buyers are permitted a 14-day period of inspection following delivery, with the option to cancel the sale during that period and have the lot collected free of charge. This is more in line with, for instance, the online services provided by art fairs such as “The Affordable Art Fair” which offers a 14-day “compatibility period” in any event, and is currently offering worldwide returns free of charge.
Other auction houses acknowledge in the applicable Conditions of Business that their premises are closed and that collections and deliveries of purchased property will only resume when they reopen (and that shipping may also be delayed or affected), but at least on the face of it make no additional concession in light of the pandemic in relation to the inspection of property. Reference is, however, often made to the Consumer Rights Directive (Directive 2011/83/EU), which has been incorporated into UK law. For time-limited online-only sales (where lots are available for bidding online during a specified period), this should give bidders who are EU consumers (so not, for instance, buying as a dealer) who buy online from a seller who is a trader (as opposed to another consumer) the right to cancel within 14 days of taking possession of a lot if, for whatever reason, they do not wish to keep it after all when they finally see it in person. As indicated above, some online selling platforms appear to be offering or extending such cancellation rights to all bidders.
For those tempted to use this period to add to or even start their art collection by buying online, this is by no means to be discouraged, but it is perhaps more than ever advisable to read the terms and conditions carefully, given that you won’t see the artwork until it arrives, to understand what rights you may have if upon arrival the art work is not quite what you expected. Knowing this should make any prospective bidder feel more comfortable about participating, and thus increase the enjoyment to be derived from any purchases.
Think too about the actual mechanism of online bidding: it has never been easier to bid from a smartphone or laptop but this does bring with it the potential for an inadvertent push of the button which may result in a bid being placed unintentionally which cannot be recalled and which will, moreover, result in a request for payment if it turns out to be the winning bid. From my experience as Associate General Counsel at Sotheby’s, most auction houses are unlikely to accept a misplaced swipe or tap as a reason not to pay and certainly not the more creative excuses such as falling asleep on the keyboard while bidding online!
Finally, some art can still be viewed in person for free: if your daily exercise should take you past the Victoria Tower Gardens at Westminster, Rodin’s sculpture The Burghers of Calais can still be admired, as can Barbara Hepworth’s Winged Figure on the wall of John Lewis on Oxford Street, or outside London there are Anthony Gormley’s sculptures around the country (for instance, ANOTHER TIME XXI 2013 in Margate), as well as Banksy graffiti (for instance, in Bristol), to name but a very few.
If you have any questions on the issues raised in this article, please contact Lisette Aguilar, art law specialist at Keystone.
This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.