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Deal Revealed: Berkshire Museum Makes Public Its Consignment Agreement with Sotheby’s UPDATED

In a court filing today that made public previously impounded documents, the Berkshire Museum provided an inside look at auction-house/consignor dealings that are usually confidential.

The filing includes the text of the agreement wherein the museum consigned for auction 40 works from its collection that were to be sold in a series of (now postponed) sales. (The consignment agreement is slightly redacted “to protect a trade secret of…Sotheby’s.”)

Photo by Lee Rosenbaum

On Nov. 29, the Berkshire Eagle‘s lawyers had filed an emergency motion asking the Massachusetts Appeals Court to unseal these documents.

Dated June 9 and signed by the museum’s president and executive director on June 13, the consignment agreement exempts the museum from paying any seller’s commission but does not state that it would receive any portion of the buyer’s premium—a concession that is sometimes made for desired consignments. Sotheby’s did agree to pay expenses related to the sale: catalogue production and mailing, packing and shipping of objects, advertising.

UPDATE: The Berkshire Eagle, which received a less expurgated version of the contract, reported that the museum would, in fact, receive a portion of the buyer’s premium. (The percentage amounts remained blacked out.)

Responding to those who had called for a halt to the controversial disposals, the museum’s officials had previously stated that it would incur substantial penalties if it were to withdraw the consignments. But the agreement permits the museum to pull certain items from sale “without penalty,” if this were done “prior to… [redacted].” Because of the redactions, it’s not clear whether some items were excluded from the permission to withdraw, or what time frame was set for penalty-free withdrawals.

According to the agreement, the museum would have to pay a withdrawal fee if Sotheby’s pulled a work from the planned sale because of “reasonable doubt as to the accuracy” of the museum’s “representations and warranties” or because the museum had “breached [a] material provision” of the agreement. But there would be no withdrawal fee if going ahead with the sale would subject Sotheby’s and/or the museum “to liability, including objections raised by an Attorney General [emphasis added].”

Massachusetts Attorney General Maura Healey

In fact, objections have been raised by the Attorney General, which would seem to give the Berkshire Museum an out—a chance to withdraw the consignments without being penalized by Sotheby’s. But that would mean foregoing the money that it had hoped to raise via the sell-off to increase its endowment and reinvent its facilities and displays.

To try to expedite resolution of this legal battle, the museum today filed in Massachusetts Appeals Court a response to the AG’s motion to extend to Jan. 29 the court’s injunction preventing the art sales from taking place. The museum is asking that notwithstanding the temporary injunction against its sales, the proceedings to adjudicate the dispute be allowed to continue in Superior Court, where a Nov. 7 ruling (successfully appealed by the AG) would have allowed the sales to proceed.

The purpose of the injunction was to give the AG’s office time to complete its investigation, the results of which could have significant impact on how the case is ultimately decided.

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