Ingrid was angry; for good reason: she had been offered her first one-man show and had just been to see Humphrey to borrow the painting she had sold to him last year. 'When I saw it, I couldn't believe my eyes. He'd put it in this bloody awful frame and had hung it in direct sunlight so that the colours had faded badly. I told him what I thought of him; he said that if that was my attitude he wouldn't lend it to me anyway. When I told him he still hadn't paid me the balance of £75 and that the painting was still mine, he pointed out that I'd told him to forget about the £75 last month. That's true, but I was drunk at the time and he knows that I didn't mean it. The whole thing is so ridiculous. What can I do?'

More important, perhaps, is how can artists protect themselves, their artworks - and their buyers - from these kinds of problems? The answer is to have a written contract of sale signed by artist and buyer, clearly setting out the terms and conditions of the sale.

Why have a contract in writing? Two reasons: the written contract will still serve the same purpose as a bill of sale (to prove to the taxman that you are a working artist and, as such, entitled to deduct all your working business expenses from your tax bill); it will also enable both artist and buyer to see clearly, in writing, their respective rights and obligations regarding each other and the artwork. If there are still any doubts about the value of a written contract, consider what the position would be if the artist simply handed over the artwork for an agreed price: in that situation the law will rule that a 'Silent Contract' has been made (because neither party has said anything about conditions of sale) and that the following obligations are imposed on the artist and the buyer:

The Artist will agree (whether s/he likes it or not),

1. to sell the work to the Buyer.
2. to deliver the work to the Buyer.
3. to allow the Buyer to lose, damage or destroy the work.
4. to allow the Buyer to reframe the work.
5. to allow the Buyer to restore and conserve the work, without allowing the Artist first option to do so and without prior consultation with the Artist.
6. to pay to the Buyer the cost of any restoration and conservation necessitated by unreasonable deterioration of the work.
7. to allow the Buyer to exhibit the work anywhere in the world and under any circumstances.
8. to allow the Buyer to sell or give the work to any individual or organisation.
9. to allow the Buyer to prevent anyone seeing the work, including the Artist.
10. to allow the Buyer to prevent anyone reproducing the work, including the Artist.

The Buyer will agree,

1. to pay the Artist £x for the work - whenever he feels like it.

The Silent Contract is to be avoided. The first step towards convincing buyers that it is reasonable, normal and desirable to sign a contract is to use a simple Bill of Sale. The following suggestion is one which artists may wish to use or to modify to suit their own circumstances.

Artist's Bill of Sale

Date:
Place of Sale:
Title of Work:
Description of Work:
Sold to: name address
Price:
Terms of Payment:

Note: copyright remains in the Artist.

signed: Buyer Artist

The solution to Ingrid's problems would be much simpler if she could produce a Bill of Sale, for then she could prove that she had sold the painting to Humphrey for a certain price; only then could she start to argue that he still owed her £75, and from there she could, perhaps, argue that she still owned the work, despite her drunken benevolence. However, her urgent need to borrow the painting for the exhibition could not be fulfilled. She could never succeed in forcing Humphrey to lend her the work for an exhibition, or even to allow her to photograph it for the catalogue, unless she had made it a condition of sale.

The Artist's Bill of Sale is a humble beginning, but even that can be imaginatively used by artists (and buyers) to incorporate appropriate conditions of sale; these will be discussed in the next issue.

© Henry Lydiate 1977