What are you buying when you commission an original painting? Sale of Goods Act

In the recent British Columbia case of Brennan v. Burrow, 2016 BCPC 78, the purchasers of an original painting from an artist sued to recover the $9,000.00 purchase price.

The purchasers commissioned a painting for their West Kelowna home after viewing the artist’s work at the Calgary Stampede.  The purchasers noticed a problem immediately upon delivery of the painting – that there was a distorting glare due to the finish of the painting. They said that this glare makes it difficult to focus on the painting.  The artist denied the glare problem and stated that the painting had the same finish as the other paintings viewed by the purchasers.

In Court, the purchasers alleged there was an implied term in the contract – on the basis of s. 18 of the B.C. Sale of Goods Act – that the painting would be reasonably fit to hang in their living room.

The Court had to decide whether the contract for the painting is for the work and labour of the artist (separate from the actual painting) or whether it is for the original painting itself? The Court held that in British Columbia contracts for original paintings are for the work and labour of the painter. In other words the contract is not for the actual painting, it is for the time the artist spends on the production of the painting. Since s. 18 of the B.C. Sale of Goods Act only applies to goods, the Court held that there is no implied term in the contract regarding the painting being reasonably fit for the living room and dismissed the purchaser’s claim.

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