Business Law Articles
By Paul W.L. Russell, LL.M.
Russell Advocaten B.V.
Why is it so important to conclude a sound consignment agreement? In what cases can such an agreement be helpful?
In consignment sales the owner of a work of art appoints an intermediary to sell a work of art at a price previously determined and to then hand over the sales proceeds to the owner. The intermediary (usually an art dealer or other professional) will be reimbursed for this transaction. Generally, the owner hands over the work of art to the intermediary yet without transferring the ownership of it.
Before giving a work of art in consignment however, it is important to conclude a sound consignment agreement in writing with the party the work of art is given in consignment. A consignment agreement might be helpful, for instance, when attachment is levied on an object given in consignment.
Attachment of an Object Given in Consignment
If the art dealer to whom you have given a painting in consignment fails to pay his invoices, the creditors will initially levy attachment on the art dealer’s trading stock to settle their claims. This also includes the painting you have given in consignment. Indeed, the bailiff who levies attachment will assume that all artefacts at the art gallery are the property of art dealer.
Subsequently, the third party will proceed to sell the attached painting to settle the claim he has against the art dealer with the proceeds of the sale. What action can you take?
You can have the attachment lifted. After all, the third party does not have a claim on you but on the art dealer. However, you will have to be able to prove that you are the owner of the painting and that the fact that it is at the art gallery does not mean that you have transferred the ownership to the art dealer. You can do so by concluding a written consignment agreement.
Make sure to specify in the consignment agreement not just your ownership of the work of art but also agreements on the following:
The minimum price the work of art is to be sold at
The amount of compensation for the intermediary and/or
An obligation to consult before the sale
This will strengthen your position if an object you have given in consignation is sold at a lower price than previously agreed, if an object you have given in consignment is not sold but not returned either, or in case the art dealer refuses to hand over the sales proceeds.
What Can We Do for You?
Would you like to give an object in consignment? We will be happy to draft a consignment agreement on your behalf which clearly shows that you do not transfer the ownership of the said object. Please contact us.
For more information about Russell Advocaten B.V., please visit the International Society of Primerus Law Firms.
The general information contained herein is intended for informational purposes only. It is not intended to be, and should not be construed as, legal advice or legal opinion on any specific facts or circumstances.