It is imperative to have something in writing. The so-called Statute of Frauds in the US makes a writing an essential element in creating legal relations in transactions involving goods worth more than $500. And any issues regarding title must also be addressed in a timely fashion. There is a six-year statute of limitations on bringing a claim regarding a defect in title.
As a rule, the seller has the greater ability to verify title, and a buyer should do everything in their power to ensure that the seller has performed due diligence on the provenance of the work and is not disclaiming any liability. At the same time one can only recover to the extent of a seller’s assets. Many galleries and sellers may be operating without deep pockets, and a judgment against them may be of little to no financial value.
GI: What are the resources available for verification?
RL: A buyer can do their own title research, and/or hire an expert to help them. Typical sources of information regarding provenance include catalogue raisonnés, authenticators or authentication boards for specific artists, auction catalogs and sales documents (including the online portals ArtNet, Art Sales Catalogues Online and Artfact), museum records, curators, art advisors, and art historians, to name a few. There are a number of organizations like the Art Loss Register, the Commission for Art Recovery, and the International Foundation for Art Research, as well as the Getty Provenance Index, and the Association of Art Museum Directors Object Registry, which are a good starting point for research. Title insurance from a company like ARIS Title Insurance Corporation can also be used. There are a number of attorneys who specialize in art and cultural property. A list containing many such firms can be found here.
Dr. Richard Lehun, Esq is a German-Canadian inter-disciplinary visual artist (film and photography), attorney, and holds a doctorate (SJD) in Fiduciary law. He is a regular guest lecturer at Sotheby’s Institute of Art on the topic of fiduciary obligations in the fine art context. Richard Lehun is a founding member of the New York Stropheus legal and business collective for the arts, responsible for gallery, museum, and auction house ethics and fiduciary duties.
Secondary market works are typically those that have been bought privately from previous owners, and dealers. These are not the works acquired directly from the artist, the artist’s estate or the primary gallery representing the artist and selling works for the first time. – galleryIntell
This is part 2 of our interview with Richard Lehun. This article © galleryIntell.
