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Massachusetts Statutes – Consignment of Artwork
Chapter 104 A Consignment of Fine Art (Sections 1 - 6)


Section 1. Definitions

Section 1. As used in this chapter, the following words shall, unless the context clearly requires otherwise, have the following meanings:

Artist”, the person who creates a work of fine art or, if such person is deceased, such person’s heir, legatee, or personal representative.

Fine art”, a painting, photograph, sculpture, functional sculpture, hologram, wearable art, drawing, fiber-based work, ceramic-based work, metal work, conceptual-based art, glass-based work, an installation, a work that is created or displayed using computer, digital devices and/or new technology such as, but not limited to, digital prints, digital photographs, CD Roms, DVDs, cyberart, a web/internet-based art work, a performance-based art work and the results of the performance such as, but not limited to, film, video, DVDs, CD Roms, a sound work, an electronic-based work, a work of graphic art, including an etching, lithograph, off set print, silk screen/screen print, or work of graphic art of like nature, a work of calligraphy, an artist’s book, or a work in mixed media including collage, assemblage or any combination of the foregoing art media.

Art dealer” or “Consignee”, a person engaged in the business of selling works of fine art, who takes works of fine art on consignment in the regular course of business, other than a person exclusively engaged in the business of selling goods at public auction.

Person”, an individual partnership, corporation, association or other group, however organized.

Consignment”, a delivery of a work of fine art under which no title to, estate in, or right to possession of, the work of fine art superior to that of the consignor shall vest in the consignee, notwithstanding the consignee’s power or authority to transfer and convey to a third person all of the right, title and interest of the consignor in and to the work of fine art.

Consignor”, a person who consigns a work of fine art to a consignee, including but not limited to an artist who creates works of fine art, an artist’s heirs or legatees, or an owner of a work of fine art who holds title to the work of fine art.

Deliver” or “Delivery”, the process of physically transporting a work of fine art from a consignor to a consignee, whether done by the consignor personally, by a professional transportation service, or by the services of an agent or dealer who acts on behalf of the consignor.

Chapter 104A: Section 2. Delivery and acceptance constituting consignment; statement of delivery

Section 2. (a) Notwithstanding any custom, practice or usage of the trade to the contrary, or any other language herein, whenever a consignor delivers or causes to be delivered a work of fine art to a consignee in the commonwealth for the purpose of exhibition or sale, or both, on a commission, fee or other basis of compensation, the delivery to and acceptance of the work of fine art by the consignee shall constitute a consignment, unless the delivery to the consignee is pursuant to an outright sale for which the deliverer of the work of fine art receives or has received compensation for the work of fine art upon delivery.

(b) A consignor who delivers a work of fine art hereunder shall, upon delivery of the work of fine art, furnish to the consignee a separate written statement of delivery of the work of fine art, which shall include at a minimum the following information:—

(1) the artist’s name and the name of the owner of the work of fine art;

(2) the title, if any, of the work of fine art;

(3) the medium and dimensions of the work of fine art;

(4) the date of completion of the work of fine art;

(5) the date of delivery of the work of fine art; and

(6) the anticipated fair market value of the work of fine art.

(c) The consignee shall maintain a copy of the consignor’s written statement as an acknowledged acceptance of delivery of the art work. If the work of fine art is sold, the consignee shall record the date it sold, for what amount it sold, and name and contact information of who purchased the work of fine art. If the consignor is the creator of the work of fine art or the artist’s heirs or legatees, the consignee shall disclose the name and contact information of the purchaser of the work of fine art to the consignor with payment of the funds owed to the consignor.

The consignee shall make all records pertaining to that consignee, including records of accounts, available for the consignor to review during consignee’s normal business hours, within a reasonable time after consignor’s request, and shall provide copies of the account records to the consignor when requested. The consignee shall keep copies of all books and records for at least 4 years after completion of the consignment.

Chapter 10A: Section 3. Incidents of consignment

Section 3. The following provisions shall apply to consignment of a work of fine art:

(a) The consignee, after delivery of the work of fine art, shall constitute an agent of the consignor for the purpose of sale or exhibition of the consigned work of fine art.

(b) The work of fine art shall constitute property held in trust by the consignee for the benefit of the consignor, and shall not be subject to claim by a creditor of the consignee.

(c) The consignee shall be responsible for the loss of, or damage to, the work of fine art.

(d) The proceeds from the sale of the work of fine art shall constitute funds held in trust by the consignee for the benefit of the consignor. The proceeds shall first be applied to pay any balance due the consignor, unless the consignor expressly agrees otherwise in writing. The funds shall be allocated and disbursed in accordance with section 4A.

Chapter 104A: Section 4. Trust property; contact information of consignee; forfeiture of property

Section 4.
(a) A work of fine art received as a consignment, and the funds derived from the sale of the work of fine art, shall remain trust property, notwithstanding the subsequent purchase thereof by the consignee directly or indirectly for the consignee’s own account until the price is paid to the consignor. If the work of fine art is thereafter resold to a bona fide purchaser before the consignor has been paid, the proceeds of the resale received by the consignee shall constitute funds held in trust for the benefit of the consignor and the trusteeship shall continue until the fiduciary obligation of the consignee with respect to such transaction is discharged.

(b) A work of fine art, or funds received as a result of the sale of a work of fine art, held in trust and pursuant to this chapter shall be considered property held in a statutory trust as defined and contemplated by 11 U.S.C. section 541 and any other relevant bankruptcy law. A work of fine art received as a consignment, or funds derived from the sale of a work of fine art so received, shall not, under any circumstances, without the express written consent of the consignor, become the property of the consignee.

(c) The consignor of the work of art is solely responsible for keeping his contact information current with the consignee, including name, mailing address, phone number, fax number and email address. If the consignee has in good faith attempted to return the consignor’s work of fine art and has attempted in writing to notify the consignor of the intent, but has not been able to locate the consignor within 1 year of the consignee’s decision to return the unsold artwork, the work shall be considered forfeited and the consignee may dispose of the property in a manner as the consignee considers appropriate. The consignee shall keep on file a record of attempts to contact the consignor.

Chapter 104A: Section 5. Waiver of provisions

Section 5.
Any provision of a contract or agreement whereby the consignor waives any provision of this chapter is void.


Chapter 104A: Section 6. Application of chapter
Section 6.
The provisions of this chapter shall not apply to a written contract executed prior to its effective date, unless either the parties agree by mutual consent that the provisions of this chapter shall apply or such contract is extended or renewed after the effective date of this chapter. The provisions of this chapter shall prevail over any conflicting or inconsistent provisions of chapter one hundred and four and chapter one hundred and six.





References & Resources:

Confirm currentness* of these provisions on Mass.gov at http://www.mass.gov/legis/laws/mgl/gl-104a-toc.htm  (Last visited 2/6/09)

Massachusetts Art Preservation Act





*Be aware that the website for the court system of Massachusetts has a disclaimer on its main page which indicates that the statutes presented there are not "official" and therefore further research–or consultation with a lawyer–may be necessary to confirm currentness, accuracy, and to preserve time-sensitive rights.







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Noted Provisions:

Section 2 defines what conditions constitute a consignment of artwork & the responsibility of the original seller/artist to provide a list to the intermediary seller (dealer or gallery, etc.) and that party's duty to maintain sale records.

Section 3 provides that the consignee (dealer, gallery) is an agent of the seller, holds the artwork and/or sale revenue in trust for the seller and is also responsible for damage or loss of the artwork (while it is in consignment status)

Section 4 pertains to consignee (dealer, gallery) obligation to pay proceeds of sale to seller (a). In the event of consignee (dealer, gallery) bankruptcy, section (b) provides that the artwork or proceeds of its sale are not presumed to be owned by the dealer/gallery, but is held in trust for the original seller.

Section 5 provides that the orignal seller (consignor) cannot waive the provisions of this statute.