When a Sale is Not a Sale

The Art Newspaper has a very interesting article on a sale of a David Hammons painting, sold and paid for in its March 3rd sale, and then tried to cancel the sale after transfer of ownership because they failed bring in an expected bidder.  They wished to cancel the sale, refund the payment and re-auction the work the following month. The purchaser has now sued Christie's and stopped the sale. Christie's still has the work and is waiting a decision from the courts. There is a terms of sale clause in the  catalog where a sale can be canceled, but it does not state it can be canceled after payment.

The Art Newspaper reports

A lawsuit filed in April suggests that Christie’s recently tried an unorthodox method to secure a lot for its big spring auctions: taking the art from someone who does not want to sell it.

The suit, filed in a New York district court on 18 April, alleges that Christie’s tried to withhold—and resell at last month’s post-war and contemporary evening sale—a David Hammons painting after title had passed to its purchaser—a Luxembourger named Philippe Dupont, the plaintiff in this case.

Coach (around 1974) is an impressive example of Hammons’s body prints, and was expected to sell for between $300,000 and $500,000 at a 3 March auction that featured the work on the catalogue cover. Dupont won the lot, number 67, with a phone bid of $390,000. After emails from Christie’s congratulating him on his purchase, he wired the auction house his $475,500 total with premium on 8 March, which then cleared his bank on 10 March. One week later, he received a phone call from four Christie’s employees saying they wanted to cancel the sale, and re-auction the work on 17 May.

The work was not re-auctioned, thanks to the lawsuit, but neither is it in Luxembourg with Dupont. The case is now headed to arbitration, and Christie’s has agreed not to re-auction pending the result of that process. Both the auction house and Dupont’s lawyer declined to comment for this article.

Dupont’s complaint draws attention to a clause in the terms of sale published at the back of every Christie’s catalogue, which states that, in the case of error or dispute, the auctioneer can “whether during or after the auction continue the bidding, determine the successful bidder, cancel the sale of the lot, or re-offer and resell any lot”. However, it is not clear whether the statement applies to works where ownership has already been transferred to the buyer.

According to court papers, Christie’s offered to remunerate Dupont for “this mistake” and “disappointing and frustrating result”, saying that it was supposed to have brought in another bidder to the 3 March sale, but that someone had forgotten to call this bidder—hence the desire for re-auction.

Dupont rejected the offer. “I demand that you deliver the Property to me in Luxembourg pursuant to the agreed contract for shipment,” he wrote to Christie’s on 24 March.

The terms of sale make no reference to the time in which the house must deliver purchases to buyers, but do say it may charge buyers who have not collected their purchases within a week.

Auction houses have lately been testing the waters with Hammons. In May 2016, Christie’s pulled a Hammons stone head from his heralded show at Mnuchin Gallery in New York, into its Bound to Fail curated sale; it brought $1.02m, around its low estimate. Hammons’s record, set in 2013, was for a basketball hoop chandelier, Untitled (2000), which sold at Phillips for $8m.

Source: The Art Newspaper