Monday, February 02, 2009

Out of Time

Interesting art-related decision [$] out of the Eastern District of New York recently (Sands v. Bernstein, 07 Civ. 9824). Plaintiffs had a painting rejected by the Warhol authentication board in 1997. That same year, they entered into a letter agreement with the defendant under which, if he was able to get the decision reversed, they would sell the work to him for $65,000. The original letter, dated Feb. 25, 1997, said "if I succeed in having the price authenticated this year . . ." (my emphasis). In Dec. 1997, they amended the letter agreement to say "this year i.e. 1998 or longer if needed . . ." (again my emphasis). In 2007 plaintiffs demanded the return of the work; defendant refused, relying on the "longer if needed" language. On summary judgment, the court ruled for the plaintiffs, holding that "the contract has expired." It noted that "where an agreement does not specify a date or time for performance, New York law implies a reasonable period," and went on to hold that, although the "longer if needed" language is "unclear," it "cannot reasonably read to extend the life of the contract over ten years."

A second claim -- for a 5 percent commission (amounting to $170,000) on the sale of another work -- survived the motion and will go to trial.