An artist recently raised an important question about leaving work with a gallery who had insisted on disclaiming liability for taking care of the work whilst in their possession.
You say you never compromise
With the mystery tramp but now you realise
He’s not selling any alibis
As you stare into the vacuum of his eyes
And say do you want to make a deal. *
The gallery wanted to put it on show to allow them some time to decide whether it should be acquired for their permanent collection. The artist, flattered of course, took the piece along, was given a signed receipt, and was then asked to sign a disclaimer in the following terms:
The same care and precautions are taken for the safe custody of works of art deposited at this gallery as for the safe custody of works in its permanent collection. Works of art can, however, only be received in the gallery on condition that neither the gallery nor its officers shall be liable for any loss or damage to works of art, howsoever caused, which might occur whilst they are in the gallery or on transit.
The artist did not sign it, but took it away for further consideration and then sought Artlaw’s advice. Questions which troubled the artist were:
- What is my legal relationship with the gallery anyway?
- Is that relationship affected if I do not sign the disclaimer?
- If it is not signed and the work is lost or damaged whilst in the gallery’s possession, are they responsible?
- If it is signed and given to the gallery, who is responsible if the work is lost or damaged?
An art lawyer’s response would be:
- There is a legal relationship between the artist and the gallery, even though there is no written evidence of it: they are lender and borrower (or bailor and bailee in legal language). This means that the gallery have the legal right to possess the piece until the artist asks for it back and, whilst in their possession, the gallery must take all reasonable care of the work.
- If not signed, the gallery may be able to say that the artist knew about the disclaimer anyway and apparently accepted it; and that the disclaimer does affect the normal legal duty of care that the gallery should have for the work. In fact, the gallery could say that the disclaimer exempts them from legal responsibility for ‘any loss or damage to works of art, howsoever caused, whilst they are in the gallery or in transit’ (whether this is legally correct is another matter).
- The law has something further to say about such disclaimers: Parliament considered this kind of problem, considered it to be unfair on the weaker negotiating party, and passed the Unfair Contract Terms Act in 1977. In essence, the Act says that such a disclaimer will only be valid if it is reasonable in all the circumstances, and that it is for the gallery to prove (in court, if there is a fight) that it is reasonable. What is reasonable? What do you think? Consider these questions: Is the gallery in the business of handling works of art? Could they be expected to exercise their best professional skill and judgement to take care of all such works? Could everyone expect them to be insured for any loss or damage to such works at the gallery? Could everyone reasonably expect them to make good any loss or damage which occurred at the gallery? Of course. The Act itself has something specific to say about what is reasonable: where this question arises, regard must be had to:
- the resources which anyone could expect to be available for the purpose of meeting the liability should it arise; and
- how far it was open to effect insurance cover.
In all these circumstances any court must find that the disclaimer was unreasonable.
- Signing such a disclaimer would make no real difference to the legal position, but the artist would be well advised not to do so.
Perhaps an even more important question arises from this case: what is a large public gallery doing using such obviously unreasonable and invalid disclaimers? Not every artist would be as vigilant or shrewd as ours, and perhaps others would sign and truly believe the work was their own responsibility whilst at the gallery, even though out of their possession or control. What, then, if the artist had tried to secure his own insurance cover for the work whilst at the gallery? It is very doubtful whether any insurer would take the risk (except for a prohibitively high premium) on work that was out of the insured artist’s control.
This whole issue is very important for all artists, dealers and galleries (public and private). Artists are in the business of leaving work with others for short periods; putting their work about is what it’s all about for most artists. Situations which spring to mind are:
- one-off public exhibitions;
- one-off private exhibitions;
- consignment or sale-or-return deals with a gallery, agent or dealer for selling purposes;
- consignment to competition (open or limited) organisers for selection for prizes, shows or commissions;
- loans to private and public bodies.
In all these cases the artist is entering into a legal relationship, usually contractual; and in every case any notice or contractual term (whether verbal or written) disclaiming liability for negligence cannot be valid in law, unless it is proved to be reasonable in all the circumstances. And it is for the person relying on the disclaimer to prove that it is reasonable.
Obviously, in all these cases a written agreement should be used. (Yawn, yawn, I hear you say.) It is good advice. In that way everyone involved will have to think about who is to be responsible for loss or damage to the work, and make suitable arrangements acceptable to everyone. It avoids so much trouble, which itself only benefits lawyers. But remember, even if the agreement reached includes a disclaimer (maybe because the weaker party cannot argue or negotiate the stronger to accept responsibility), it will only be valid in law if it can be proved to a court by that other person that the disclaimer is reasonable.
© Henry Lydiate, 1981
*© M. Whitmark & Sons, 1965