Handshake no substitute for written agreement
Taking home a piece of art to see if it looks good on the wall before buying it is usually not problematic, unless you don’t make it clear with the gallery on your intentions, a judge ruled recently.
Art collector Anne Alcyone claims she was duped out of nearly $4,000 earlier this year by a gallery in Santa Monica’s Bergamot Station because the art she thought she was borrowing turned out to be a final sale.
Alcyone said the gallery refused to take back three $1,200 abstract oil paintings, even though she bought the artwork on the condition that she and her husband approve of how the pieces fit in their home, Alcyone said.
At issue was whether or not the pieces — created by an undentified Los Angeles artist — were bought on “approval,” a practice that’s very common in the art world, especially with big ticket items. Buying a piece of artwork on approval allows the prospective purchaser to sample the work before comitting to buying it. Usually it’s a written agreement between the seller and the buyer.
But no agreement existed between gallery owner Patricia Correia and Alcyone, which is why they landed in court. Alcyone maintains that she has bought art on approval from Correia in the past with just a hand shake type of understanding. While she acknowledges that, Correia said Alcyone was certain she wanted the three pieces when she was in her gallery in September. So Correia charged Alcyone’s American Express card.
But when Alcyone realized they didn’t look as good on her wall as they did in the gallery, she tried to return them. Correia refused to give her money back so Alcyone sued her for $3,897, the cost of the three pieces.
But Commissioner Donna Groman said Alcyone failed to prove her case and ruled in favor of Correia, who had at least twice offered Alcyone a store credit but maintained that the $3,897 sale was final. Alcyone couldn’t produce a formal agreement to prove her case.
“God forbid something terrible happen,” said Correia, whose insurance does-n’t cover pieces once they’ve left her gallery. “It’s got to be very clear, very clean-cut on paper. This is not something that’s done in a haphazard way.”
Alcyone said she gave the gallery her husband’s American Express credit card so an imprint could be taken, but she did-n’t think it would actually charge her.
“It was like wishful thinking. She just ran the card and hoped I’d keep it.” — — ANNE ALCYONE Santa Monica art collector
“If you like it, you keep it. If you don’t, you bring it back. That’s how it’s always worked,” Alcyone said. “I was flabbergasted (when they wouldn’t refund the credit card). We’re talking about nearly $4,000 here. This is not pocket change.”
Correia, who compared an approval receipt with the receipt for Alcyone’s Sept. 7 purchase, said she offered to loan Alcyone the paintings, but Alcyone didn’t seem interested.
“She left and came back with her friends, and they were all saying ‘Buy it, buy it. I know right where it’ll go,’” Correia said. “We know the distinction between sales and loans.”
But Alcyone said Correia deliberately misled her into believing it was a purchase on approval.
“It was like wishful thinking,” Alcyone told the court. “She just ran the card and hoped I’d keep it.”
When Alcyone asked that the American Express card be credited, Correia refused because the artist had already been paid and American Express had already charged her business a fee on the sales transaction, which is routine under the merchant’s agreement.
On her way out of court, Correia again offered Alcyone store credit. But Alcyone refused, saying she intended to sell the pictures. Alcyone did not return calls.
Manny Silverman, who runs Manny Silverman Gallery in Los Angeles, said one of the primary benefits of galleries is that, unlike in an auction, interested parties can sample work before they purchase it.
“Approval sales are more common, but they have to be stated before the fact,” said Silverman. “Once you accept an invoice and pay an invoice, that sale is final.”
“Approval sales are more common, but they have to be stated before the fact. Once you accept an invoice and pay an invoice, that sale is final.” — — MANNY SILVERMAN Manny Silverman Gallery
Originally published in the Santa Monica Daily Press print edition on December 26, 2002. Read the original PDF.