The lockdown and social distancing measures imposed by the government to fight the Coronavirus pandemic have changed the way auction houses and art galleries do business. Auction houses are moving sales online and are rediscovering the attraction of private treaty sales; and art dealers are moving online to exhibit art works on Instagram and Twitter, offer virtual gallery tours, and are selling online. But are your terms and conditions of business fit for purpose to deal with those changed circumstances and new ways of doing business?
Despite auction houses and galleries being forced to close their doors for the time being, there will still be plenty of business transacted behind the scenes. Private treaty sales are likely to be a principal means of buying and selling artworks.
Unlike public auction sales, private treaty sales offer the parties to the transaction privacy, flexibility and control. That does not mean, however, that they should be entered into without an appropriate level of due diligence and a proper written and enforceable contract in place.
Given that the deadline for this column fell a few days before the December Westminster Election Day, you will be pleased to hear that the next couple of column inches are a Brexit free zone, for a change. When I asked the kids what I should be writing about instead this month, the answer was: climate change (actually they said ‘the climate emergency’).
Ok, but what does that have to do with lawyers, you may ask. Well, the UN has been busy for a while now creating an ever more elaborate legal framework of international conventions and agreements on climate change, so that’s where the law comes in. In fact, the United Nations Framework Convention on Climate Change (UNFCCC) was adopted as long ago as 1992 at the Rio Earth Summit. Greta wasn’t even born back then. Let’s not dwell on how much CO2 all those delegates will have generated, jet-setting from one summit to the next ever since.
Rocky Road is a popular type of candy containing lumps of chocolate, marshmallows and nuts. It is also what the UK can expect to lie ahead in the months and years following Brexit as it endeavours to forge new relationships with the EU and trading partners around the world. The December elections have come and gone and, yes, much to Europe’s surprise, the English (if not necessarily the British and Northern Irish) electorate really did want Brexit. As the election results filtered through, and the scale of the Tory party triumph became clear, Der Spiegel, Germany’s weekly news magazine, concluded with some consternation that the geese really did vote for Christmas (that is because the Germans eat goose rather than turkey for Christmas, to stick with the food theme for a moment).
I am relieved to report that the prime minister is alive and well and that any fears that he might be found dead in a ditch on 31 October 2019 were unfounded (as was perhaps always going to be expected). The only thing that may have landed in the ditch is his credibility but he doesn’t seem particularly fazed by the fact that this is a fairly commonly held belief, so that is ok then, too. I am equally pleased to report that, for the time being, the UK remains a fully-fledged member of the EU.
So where does this leave us? Well, to start off with, with a new flextension, potentially until 31 January 2020. Apart from that, between all the spin and counter-spin about the prime ministers “new” Brexit deal, it was actually rather difficult to understand what precisely had changed. The EU had said that it would not re-open the Brexit agreement itself, so the changes are in fact set out in a 64 page Protocol on Ireland/Northern Ireland included in the withdrawal agreement. The new deal is pretty much the old deal agreed by Theresa May with the EU in November 2018 but with certain changes to the customs status of the Irish border after Brexit replacing the old back-stop.
Since my last Brexit column, we have now had the judgment of the Supreme Court on the prorogation of parliament. The judgment is worth a read and deserves more column inches than I can offer here. The Prime Minister promptly let it be known that he profoundly disagreed with it. The leader of the house of commons and erstwhile Brexit ultra Jacob Rees-Mogg called it a constitutional coup (as if that wasn’t the pot calling the kettle black). But former Supreme Court judge Jonathan Sumption summed the whole thing up quite aptly when he said on the BBC that “one has to accept that if you behave outrageously and defy the political culture upon which our constitution depends, a lot of judges are going to be tempted to push the limits. And the trouble is, Boris Johnson has taken a hammer and sickle to our political culture in a way that is profoundly provocative to people who believe that there ought to be solutions consistent with our traditions.”
You would really be expecting me to write about Brexit at this extraordinary time, wouldn’t you? Ok, all right then, but I am not sure where to start. Perhaps with the fact that I am going to an ever growing number of farewell parties, the last one of Italian family friends who are returning to Monza? Or with a smiling nod to the BBC, which is upholding the British sense of humour and stiff upper lip at the time of the Yellowhammer Report by running an extensive feature on whether you can survive on foraged food, recommending roasted Burdock root and Elderflower fritters served with icing sugar and lemon (I didn’t know lemons grew in the UK)? Apparently spruce tips and Woodruff are also edible. But foragers face not only culinary but also legal challenges: if it were to come to that, make sure that you ask the permission of the landowner before you start picking things but do not under any circumstances do so in any of the Royal Parks. On the upside, the Wildlife and Countryside Act permits picking on common land for personal use, subject only to any local bylaws.