No retractation at fairs and exhibitions

The collector’s eye was immediately won over, his mind made up: he had to buy it, whatever the cost. After negotiating, the dealer and the collector reached an agreement and signed a sales contract or purchase order. The price was still a little high, but he told himself that an aesthete always lives beyond his means. And if he suddenly got cold feet, the collector convinced himself that he could always withdraw from the purchase within the next 14 days. But on the tenth day, the collector is surprised when the dealer tells him that there is no right of withdrawal: You bought it? I’m very happy for you – now it’s time to pick up.

This contemporary fable may be intended to make you smile, but it brings to mind the mistaken belief that the collector-consumer has a 14-day right of withdrawal when buying a painting, drawing or sculpture at a fair or exhibition. It is true that the right of withdrawal means an individual’s right to cancel a purchase - generally within a period of 14 days - without having to give reasons, when the seller is a professional. In reality, the French Code de la consommation only grants such protection in the context of ”off-premises” sales. This is not the case for public auctions (unless the sales are totally digital), trade fairs and exhibitions (unless there is an allocated loan): there is no right of withdrawal!

While this lack of right of withdrawal is certainly advantageous for art dealers, their obligations are burdensome. They must display, in a way that is visible to consumers, - on a panel no smaller than A3 in size and in a font no smaller than 90 - the sentence “The consumer does not benefit from a right of withdrawal for any purchase made at [this fair] or [this exhibition], or [on this stand]”. They must also include, in the sales contract or purchase order, the sentence: “The consumer does not benefit from a right of withdrawal for a purchase made at a fair or exhibition, ” at the top of the contract and in a font size no smaller than size 12. However, traders often fail to meet these obligations, even though they are liable to an administrative fine of between €3,000 and €15,000 (article L. 242-34 of the the French Code de la consommation). Vigilance is therefore required, because in practice, these strict rules are rarely complied with: a written document is rarely formalised, since we are dealing here “with gentlemen”. The trader and the buyer reach a verbal agreement, and the latter pays when he or she wants. If the buyer withdraws, the merchant rarely sues... However, there are two loopholes for collector-consumers. The first lies in the context of the purchase: if the dealer invites the buyer-consumer, who is in the area for the general public, to visit his stand and manages to sell him a work, the consumer benefits from the right of withdrawal. The devil is in the detail, but this is the solution set out by the Court of Justice of the European Union on 17 December 2019. Yet consumers wishing to withdraw from a contract face one major problem: how can they prove that it was the seller who lured them in?

The second pertains to ordinary contract law, to such an extent that on 20 December 2023 the Cour de cassation opted for case law that protects people solicited at fairs and exhibitions by requiring professionals to provide pre-contractual information. This means that the sales agreement must set out the essential characteristics of the work purchased and the delivery and/or installation times, failing which it may be vitiated on the grounds of error and annulled. The penalty here is more severe for dealers than in the case of withdrawal. A review of the contractual documentation is therefore vital to ensure compliance.

To further protect collector-consumers, in 2019 two bills were tabled in the National Assembly and Senate to extend the right of withdrawal to agreements concluded at fairs and exhibitions. But their future remains uncertain, and one of them has been withdrawn. The idea is not without interest, however, since the concept of «off-premises» sales established by European Union case law in 2018 would be at odds with French law. Collector-consumers would therefore have a certain amount of leverage when trying to oppose the existence of a right of withdrawal.

To provide greater transparency and security for both parties, there is nothing to prevent traders from including a withdrawal clause in their sales agreement or purchase order, which can help them to make up their mind quickly while at the same time acting as a selling point.