13 November 2018

The Banksy shredding stunt – a breach of contract?

In October Banksy, the anonymous and renowned street artist, pulled another public stunt at a London auction which sent shockwaves through the art world. After the hammer went down on the sale of his 2006 artwork ‘Girl with Balloon’, the artwork self-destructed live as a built-in shredder started and reduced the artwork to ribbons.

Amid the public outrage and intrigue arising from this stunt, some interesting legal questions can be asked: did the shredding of the painting amount to breach of contract, and could the purchaser sue Banksy in contract?

An unusual auction, then?

The incident occurred live at a Sotheby’s Contemporary Art Evening Sale on October 5, where the artwork was put on sale for an estimated £200,000 – £300,000. The painting eventually sold for £860,000, rising to over £1m after commission and a purchaser’s premium.
Members of the audience however were shocked as the painting began shredding itself. This was captured on video and is available to view online. Many critics have viewed this as the latest in a long line of anti-establishment statements from the artist.

But is it a breach of contract?

Plainly, the destruction of the artwork amounted to breach of contract. Banksy agreed to sell his painting, and it was duly sold for consideration (money in this case). A contract came into being as a result. The artist then destroyed the subject matter of the contract by shredding it.

The destruction of subject matter would generally frustrate a contract, meaning that neither party could rely on its terms for purposes of breach and enforcement. However, Banksy shredded the painting on purpose and therefore was at fault. In law, a contract will not be frustrated where the impossibility of performing it occurs because of the fault of the contracting parties. The shredding was not beyond the control of Banksy – in fact he arranged it.

Whether there would be merit in suing under the contract in these circumstances is doubtful. The shredded painting immediately increased in value, so in fact no financial loss was suffered and the purchaser was not aggrieved. The purchaser was actually happy with the purchase, claiming she began to realise that she would end up “with my own piece of art history”.

It could also be argued that a new contract was formed by virtue of new subject-matter. The artwork has now been given a new title, ‘Love is in the Bin’, and has been authenticated as an original artwork by Banksy’s authentication body. Sothebys said that the piece was “the first artwork in history to have been created live during an auction”. The subject-matter of the contract was therefore materially altered without the agreement of the purchaser. Regardless, she was happy to go ahead with the original purchase and no dispute has arisen.

A risky business

This type of stunt is not out of character for Banksy – both in being an audacious public act, and also as a stance against the commercialisation of the art industry. Banksy has subsequently revealed that the shredding did not go according to plan – he intended to completely destroy the painting, but instead the shredder jammed and the painting was only partially shredded. This mistake may have coincidentally prevented any legal action, as the artwork remained partially intact and can still be hung for viewing.

In most other contracts for the sale of goods, the purchaser would have sued for breach of contract. However, this story demonstrates the curious nature of art as the subject-matter of contracts and how the destruction of purchased artwork can ironically increase the value of such an agreement.

For further advice from Harrison Clark Rickerbys on contracts for the sale of goods and all other litigation and dispute resolution matters, please visit our page https://www.hcrlaw.com/service/dispute-resolution/

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About the Author
Robert Beaumont, Partner
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