There are three key components to a contract within New Zealand contract law. The first component is an offer and an acceptance of that offer. In the Agreement of Original Transfer of Work of Art the offer and acceptance is indicated by the statement ‘Artist is willing to sell the work to Collector and Collector is willing to purchase the work from Artist subject to mutual considerations,…[etc]’. Secondly, a contract contains a signal of intention to be legally bound. This is stated explicitly next to where the artist and collector sign and also implicitly in articles 16,17 and 19 (Siegelaub, 841). The third component of a contract is ‘consideration’. This is what both sides are giving in exchange. For example, in an employment contract, consideration is that money is being given in exchange for work (i.e., $15.00 per hour of work). Knowing this, it seems worth considering exactly what the artist is giving in exchange for rights over the work of art that would, in the case of most other chattels, be held by the owner.
Seth Siegelaub states that the point of this document is to right the wrongs of some ‘long standing inequities in the art world’ (838). This indicates that this contract is, in a way, a new original, as all previous contracts and the exchanges therein have been unfair. This inherent ‘unfairness’ being that the appreciation in value of the given work of art is a presumed factor; ‘the parties expect the value of the Work to increase hereafter’ and that the artist plays a role in that appreciation, and therefore should be party to a percentage of that appreciation (839). However, this role of the artist seems to lean toward responsibility for the increase in value so long as the collector plays by the rules of the agreement; ‘the value of the Work, unlike that of an ordinary chattel, is and will be affected by each and every other work of art the Artist has created and will hereafter create’ (839).
It seems important to question what burden might the artist bare by offering up appreciation as their bargaining chip. The most burden seems to lie in the fact that the artist may well have their art making practices governed by factors that govern appreciation in general, such as market saturation. Imagine works that are part of an on going series as being like a set of chatter-rings in primary school. They are a novelty when the first kid brings them in to school, but they would have little value if they didn’t catch on and become ‘cool’ (signified by a few others copying the first kid). Should an art school student selling a work for $100.00 become responsible for the depreciation of that work should they decide to take up accounting, never producing enough work for their name to become valuable? If the chatter-rings catch on, their cool-factor creates an exchange value within the playground (“I’ll let you play with my chatter-rings at lunchtime if you give me some of your chips”), but once all the kids have a set, the exchange value disappears and the chatter-rings only have value in their usefulness to their owner. Should an artist then be subject to the rules of a supply and demand curve to ensure the appreciation of other works in a series?
Siegelaub, Seth. “The Artist’s Reserved Rights Transfer and Sale Agreement (1971)” in Kristine Stiles and Peter Selz ed.s, Theories and Documents of Contemporary Art: A sourcebook of Artist’s Wiritings, Berkeley: University of California Press, 1996, 837 – 841.
“Contract Law” consumer.org.nz. 10 October 2008