Following the excitement of the sale of the self-destructing Banksy last Friday night about which we reported on Monday, it has all gone rather quiet. We half-expected to hear more, perhaps from the aggrieved purchaser or maybe even from those ‘in the know’ to reassure us that it had all been one big hoax. Maybe the silence is all part of the joke…the mystery continues and the questions remain unanswered.
We pondered on Monday whether the buyer might argue that title in the work had not passed, relieving him of the obligation to hand over the purchase price. But what if that didn’t work; are there other legal remedies he might pursue? Surely, you might think, the law will come to your aid if you buy something which turns out to be very different from the product you reasonably assumed you were buying?
In theory, certainly, legislation governing the sale of goods effectively ‘guarantees’ that the goods you buy will correspond with their description and will be fit for their purpose (Sale of Goods Act 1979, sections 13 and 14). As buyers of art have learnt from bitter experience, however, an attempt to rely on these rights tends to be an uphill – and in almost all cases, a fruitless – struggle.
Let’s take the notion of ‘correspondence with description’. Firstly, the buyer would need to prove that he relied on the auctioneer’s description in making his purchase. If he’s able to do this (most unlikely if he’s examined the work himself) he then has to convince the court that he has ended up with something quite different from what he thought he was buying. Obviously, you might think: He bought a Banksy and got a frame containing a shredded canvass. But isn’t that final piece as much a Banksy as the unshredded work?
And what about its ‘fitness for purpose’? If the purchaser was buying it for its aesthetic qualities, then perhaps he has an argument. But if it was an investment, merely a commodity, then arguably, the buyer has bagged himself a pretty impressive bargain since it seems quite likely that the publicity surrounding the piece and its very ‘unique’ quality will only push its value upwards rather than downwards. Even if that were not the case, courts have generally shown little sympathy to buyers of artworks which turned out to be somewhat different from what they’d expected. The buyers of a painting which turned out not to be by German expressionist artist Gabriele Münter were told by the Court of Appeal that a resale value of £50 (for a painting bought as the genuine article for £6000) did not render that work unfit for its purpose (Harlingdon & Leinster Enterprises Ltd v Christopher Hull Fine Art Ltd  1 QB 564,  1 All ER 737).
The outlook for aggrieved buyers of art is not a rosy one then. And this is even before we’ve considered the terms and conditions of the auction house, which in all likelihood, will operate to exclude any of those potential protections described above, which the Sale of Goods Act would otherwise imply.
Perhaps in this particular case, however, we can spare our sympathies. Either the whole episode was a successful and rather thought-provoking hoax, or someone has just acquired an entirely unique and probably eminently sellable piece of art by, in the words of one art critic, “the artist who matters most right now” (Jonathan Jones writing in the Guardian, 8 October 2018).