New York, the epicenter of the American art world, has enacted special rules governing fine art transactions. Those rules can be found in New York Arts and Cultural Affairs Law (“NYACAL”).
Notably, lay purchasers of fine art are afforded stronger warranty protection than that available under Article 2 of the Uniform Commercial Code. The intention behind this additional protection is to equipoise the significant disparity of information available to art merchants and lay people, respectively. Section 13.01 of the NYACAL was designed to regulate and enhance express warranty claims brought by lay people after purchasing fine art from art merchants, in order to protect unknowing buyers from knowing sellers who may try to use the unequal balance of information power to their own advantage.
Specifically, whenever an “art merchant”[1] sells a work of fine art to someone who is not an art merchant and provides a document – a “certificate of authenticity” [2] – certifying the period or author of the piece, the merchant’s representation is an express warranty.
Article 2 of New York’s Uniform Commercial Code, on the other hand, provides, in more general terms that any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description. However, the New York Arts and Cultural Affairs Law concerning express warranties supplants the otherwise applicable provisions of the Uniform Commercial Code.
March 2015
[1] “Art merchant” is defined as “a person who by his occupation holds himself out as having knowledge or skill peculiar to such works, or to whom such knowledge or skill may be attributed by his employment of an agent or other intermediary who by his occupation holds himself out as having such knowledge or skill.” N.Y. Arts & Cult. Aff. Law § 11.01(2).
[2] A certificate of authenticity is defined as “a written statement by an art merchant confirming, approving, or attesting to the authorship of a work of fine art or multiple, which is capable of being used to the advantage or disadvantage of some person.” N.Y. Arts & Cult. Aff. Law § 11.01(6).