The Framers Forum

We've been working on a large order of bespoke gesso and gilded frames for an art dealer client who sadly died halfway through the commission. The frames are all prepared and awaiting gilding and colouring, and we are in posession of the pictures.His executor agreed originally that we would complete the frames for requested pictures to be sold at auction in selected batches and we would be paid out of the proceeds of the sale.
We now get an email from their solicitor claiming that we are illegally holding the pictures and need to return them unframed. The work we have done so far represents months of labour. Where do we stand legally? Anyone been in a similar situation? HELP!

I do not pretend to be an attorney.

If you did not receive the customary 50% deposit, you might be up a creek without a paddle.

As far as "illegally holding the pictures": isn't that collateral for the job offered by the deceased client? You did say that the attorney verbally said that it was ok to complete the job and then sell it at auction.

What form of "business entity" was the art dealer?

Commiserations. I'm not a lawyer but it's my understanding that the contract in these circumstances would be said to be "frustrated" and therefore ended. As I understand it, this means that the buyer's executors can ask for any deposit back but are obliged to pay for any expenses which the seller has incurred. But I could be wrong. It sounds as if a lot of money is tied up in this contract so I'd definitely seek professional advice from your solicitor before responding to their solicitor.

The fact that the executor previously agreed that the job could be completed might be taken as a new contract, although with nothing in writing, you might not be on safe ground there. It adds to the complexity of the case though, and is another reason for getting professional advice.

The law in the UK might be different in from the law elsewhere.

The solicitor does not have a very strong case against you and he knows it. He has no means of enforcing his demands without taking this to court and this may not be easy to determine how much sense this will make, without knowing how much the pictures will sell for at auction on the day.

I think that there still is a possibility of getting a more favourable outcome at this stage. It will take a while to arrange a court case and will delay the executing of the will. Say nothing, sit tight and let him make the next move. Don't forget that you received these pictures in good faith and have not broken any laws and they have not proven any right to act in this way, or that to do so is legal.

What grounds have they got to bring any charges against you. If it goes to court, you will be able to ask for you reasonable expenses to be met before handing over the pictures. The solicitor will have great difficulty in proving that you have behaved unreasonably and the law places considerable emphasis on things being seen as being either reasonable, or unreasonable.

In the circumstances, I can't see any likelihood of any court costs being charged to you and their solicitor will have to consider this too.

After the input from the executor, this may be useful: http://saracenssolicitors.co.uk/commerc ... d-contract

Mike.

If you are a member of Federation of Small Business , have I believe a legal hot line for members

Firstly don't panic. Their lawyer is trying to play hard ball in the hope of not settling the cash owed to you.

I am not a lawyer but:

You quite clearly have a contract with the deceased client. And the monies owed to you by the individual, now that he is dead, have become monies owed to you by his estate. So start by sending the solicitor an invoice for work done to date and request payment. Tell him when that is settled he may have the paintings and the incomplete frames. Even if you don't have a contract in writing, which you probably won't, it's quite clear that by delivering the pictures to you the dealer intended you to make frames for them. Nobody would try to argue in court that there was any other reason he had left the pictures with you.

With regard to any work undertaken since then, well... it's going to be your word against the executor's.

In the end my suspicion is that they will end up asking you to finish the work, but stay calm and be firm. And under no circumstances let them have the pictures back before the work to date has been paid for.

I think the executor had the right idea in having you complete the work and then pay you out of the sale proceeds.
It was more than reasonable for you to agree to this. Everyone's a winner, even if you end up a bit short.
If you are obliged to return the paintings then it would not be unreasonable to present a bill for the work done so far.
And the unfinished frames should also be collected by the executor.

So, one the one hand the job gets done and you get paid. On the other hand the executor ends up with a bunch of unframed pics
and another bunch of half-done frames. I may be being a bit cynical, but it strikes me that the solicitor is just sticking his oar in to make
more work for himself. And also for the solicitor representing you if it comes to court proceedings.

Jamesnkr wrote:So start by sending the solicitor an invoice for work done to date and request payment.

It occurs to me that previously you had agreed to be paid out of the proceeds of the sales. It appears the relationship between you and the customer may well have broken down. Ensure that when the pictures are consigned to auction you are listed as a joint vendor - after all the frames belong to you until they are sold - and that the auction house understands that you are entitled to the first share of the cash on a sale. Beware also, if there are unsold lots, that they come back to you, not to the estate.

... and a reserve to cover your invoice price plus auction persentage. We do not know the value of the art.

JFeig wrote:... and a reserve to cover your invoice price plus auction persentage. We do not know the value of the art.

Ho Hum. In an ideal world. But possibly... if the art's not worth much then he's better off getting what he can out of it. Better to get something than - if it doesn't sell - nothing (or, worse still, to be left with a bill FROM the auction house for photography etc. etc.)

Steve N wrote:If you are a member of Federation of Small Business , have I believe a legal hot line for members

I like the Steve's idea of contacting a professional on this question. Another organization that might be of help to you.... If you are a member of the Fine Art Trade Guild, I would make a call to their office to see if they have any free legal advise as a part of membership, which they may.

I am not an attorney either, but some common sense reasoning on this issue, is that the artwork remains the property of the client while in your care. Unless you have a deposit down on the framing order, then your best bet is to complete the frames and sell these to anyone else as inventory...in your shop, on Ebay, etc.

Of course if the deceased has an Estate worth millions and minimal debt, then you could complete the project and submit the completed invoice as a liability to the estate of the deceased and then wait for the process to get paid. By the time that is completed, you might have already sold them!

Best of luck.

John

I'm not sure that months' worth of bespoke gilded frames will make much money on eBay...

Here's some more useful advice from a lawyer (rather than from me!).

http://www.lexology.com/library/detail. ... ec871bb0b5

The missing piece of information is the form of notice. Elsewhere on the 'net (it's behind a subscription wall so I can't send you a link) I have found this:

A Form of notice in accordance with Schedule 1 of the Torts (Interference with Goods) Act 1977, should do all of the following:

Set out where the goods are kept.
State when and where the sale will take place, if the goods are to be sold.
State that any sale and storage costs will be retained from the sale proceeds.
Attach a schedule of the goods that remain on the premises.

Having thought about this, I would write back to the solicitor including an invoice for work done to date and say that you would rather deal with this amicably but are aware of your rights and obligations under the Torts (Interference with Goods) Act 1977 and will be prepared to sell the pictures in order to settle the liabilities if an amicable resolution cannot be found. I should also write to the executor who has previously contacted you. I'm sure they want to keep solicitors fees down too... and they won't want to settle your solicitors fees on top.

Do the pictures have significant monetary value?

Thanks everyone for your helpful feedback. It's good to get reassurance that we've done nothing wrong and that we have only acted in good faith.
There are twenty two paintings that we have made frames for, four of which have been sold and paid for.

A letter from their solicitor arrived the following day stating that their client wanted an amicable and swift settlement. I'm assuming that the executor thought the first letter was too absolute and demanding possibly.
They now want any previous arrangement in respect of releasing some paintings(framed) for part payment be considered complete and fulfilled. We have finished four of the paintings that have gone to auction and have received payment.

The next stipulation is baffling, they want an independent valuation on the frames and that we produce a revised invoice detailing the" value of the frames as distinct from the valuation of your work on the framing of the paintings"
Surely the "value" of the frames, besides the actual materials we have used, is the skill in producing a professional gilded and painted finish and the man hours that has taken?
They then state that the framed paintings are to be sold at auction and we are to be reimbursed the full "value" of the frames. "The remainder of your invoice(ie for your work in framing) remains outstanding and is dealt with in a similar manner to all other creditors as laid down by statute"
I can only guess from this that they want to pay for the raw materials used in the framing if the paintings and then we may possibly be paid at some future date for for the labour involved.

The whole arrangement seems quite peculiar and and far from a speedy resolution, will only serve to drag the whole thing out (and with no assurance of full payment).

That reminds me of a similar situation a mate of mine (who had a gallery) found himself in years ago...

He had a painting in his window which got trashed after some kind person put a scaffolding pole though said
window. The painting was priced at something like £150. (It was a painting he had done). The insurance assessor
wanted to know how much the canvas cost and the cost of the paint that was on it.

A frame on it's own is not worth a lot. After all, what can you do with it if you haven't got a painting in it? It's an
individual, custom made object. You can't fix a resale value on it.

Please do not fall into the slippery slope of separating material cost vs labor. It is a lump sum.... Your retail price that is on the invoice or work order for a specific job. You are a professional tradesman and intitled to the total amount. You are "converting raw materials" (manufacturing) into a usable finished product.

Do you think that an attorney who has a billing to a client will separate out the cost of: paper, postage, rent, utilities etc. ? NO!

they want an independent valuation on the frames and that we produce a revised invoice detailing the" value of the frames as distinct from the valuation of your work on the framing of the paintings"

This is not a problem..... separare out a small fitting charge (your regular charge) for a similar sized frame.

Do not under any circumstances allow them to appoint anyone to value those frames. By agreeing to this you are allowing somebody else to place an a value upon your work not based upon your normal pricing methods, this is outrageous for them to even consider do something like this.

No doubt you have done plenty on work like this for other customers and maybe even previous work for the deceased customer. This will demonstrate the already recognised quality and value of your work and clearly shown the high reputation that you already have to command such prices.

You should not consider any basis whatsoever which in any way modifies the original arrangement. The is no legal requirement for you to allow anyone whatsoever any access to these paintings, or your frames unless ordered to do so by the courts. Don't give them anything whatsoever in writing yourself, this needs to do do through a solicitor to make sure that there is nothing from you to undermine you rights.

These people are trying to be tricky, don't let them get you to start playing their game, if you do you might lose everything if the present something written by you to deprive you of you legal rights. Don't forget you are legally entitled to proceed with the original contract and any agreement to do otherwise cannot by made unless you agree. Don't agree to anything with out involving a solicitor.

This is where access to a free legal helpline would really come in handy for you. Steve N mentioned it in an earlier post, as did John Ranes - the FSB have this for their members, as does the Fine Art Trade Guild for their members. It might be worth joining either of these for the benefit of the legal helpline; what it would cost you to join could pay for itself on this one problem. It sounds like the lawyers are trying to tie it in knots to your detriment.

Tell them to f right off if they don't pay you what you are owed.

You entered into a contract with the deceased person to supply twenty frames at a total price of twenty thousand pounds (say). That is a contract. A contract. You make the frames, he pays you what he owes. A contract is like scales, both parties provide something (generally one of these things is cash) such that they are both happy and so the scales balance. Once the contract is agreed then both parties have to carry out their side of the bargain. You make the frames, they pay up. If either side doesn't keep its side of the bargain then the other party can sue. Practically, if you don't make the frames, then they get their paintings back unframed (as no court would order you to make the frames, though theoretically it could). However if they don't pay then you are entitled to sue.

Because we live in the real world it would make perfect sense on the death of the client to tell you to stop making frames and for them to pay for the work done to date.

When it comes to 'valuing' the frames, I think their worry is that because they don't know what was agreed up front, and because they think your gilded frames are a lot of money (they are... because they're worth it...) that you are taking them for a ride because you're dealing with an executor who knows nothing about this business. So valuation-wise send them off to some other framers to find out what it would cost to have them made. Second hand, of course, your frames are worth maybe 10% (?) of what you charge, as they're an inevitably slightly battered unloved frame that doesn't fit anything else; a second-hand valuation is irrelevant, the relevant valuation is what a new one would cost.

(Prospero's insurance assessor was probably quite correct in paying out for a canvas and some paint... The painter presumably had his work insured at cost price, and didn't include the value of his time in what he was insuring. When buying insurance always think about what you are insuring.)

A bit more legalese for you. Whatever you do, don't sell the pictures, but don't give them back until you have been paid. The following definitions may assist in reading the below.

Lien: a right to hold onto somebody else's goods
Bailor: your client/his executor
Bailee: you the picture framer

Lien: can the bailee keep the goods until the bailor pays?
A bailee who is entitled to a lien over the goods may retain possession of the goods pending payment of sums owed by the bailor. A bailee who is entitled to exercise a lien against the bailor commits no wrong against the latter by refusing to comply with a demand for delivery up.
A lien may arise by contract or by implication of law under express statutory provisions or in certain defined situations at common law, for example, the solicitors' lien over his client's papers pending payment. Broadly, whether a lien arises will depend upon the terms of the original transaction and the nature of the sums claimed by the bailee.
Ordinarily, a bailor who keeps a chattel to enforce a lien cannot recover either the cost of, or any contractual remuneration for, keeping it during the period of the lien. However, this general principle has been cast into some doubt following a decision on the carriage of goods by sea: Metall Markey OOO v Vitrio Shipping Co Ltd [2014] QB 760.
The bailee may assert a lien not only against the immediate bailor but also against a third party with a superior interest in the goods, where the intermediate bailor or bailee had actual or ostensible authority to create a lien binding on the third party (see, for example, Tappenden v Artus [1964] 2 QB 185).

The bailor must also face the fact that a bailee who performs work on his goods in a manner that improves them may have a lien over the goods, entitling the bailee to detain them until the bailee's proper charges are paid. For as long as the lien subsists, the bailee has not only possession but the immediate right of possession; the bailor retains property and has the deferred right of possession.

Sale: can the bailee sell the goods to pay its money claims?
A lien generally confers no right of sale on the bailee unless that right is conferred by contract or by statute. Accordingly, a bailee who detains goods pursuant to a lien may not in general sell the goods and take what is owed out of the proceeds of sale. In this respect, a lien differs from a pledge (a bailment for reward under which the bailor bails the goods as security for a debt or other obligation), for under a pledge a right of sale is automatically conferred on the bailee (pledgee) in the event of a default by the bailor (pledgor).
Likewise, contract or statute aside, the holder of a common law lien founded on his or her improvement of the goods has no right to sell the goods.
A bailee who wrongfully sells the bailor's goods will incur liability to the bailor for breach of contract, tort or breach of bailment (see below). A bailee with financial claims against the bailor must therefore pursue any available judicial or self-help remedies (including detaining the goods under the lien) but must not sell the goods.