LIECHTENSTEIN Law and Practice Contributed by: Thomas Plattner and Fabian Jenny, Ospelt & Partners Attorneys at Law Ltd.
contracts remain standard for high‑value art transac - tions. Essential clauses typically address the passing of title, the transfer of risk, and any warranties regard - ing the artwork’s authenticity and provenance. Ownership generally transfers upon the physical deliv - ery of the artwork, unless the parties expressly agree to a retention of title. Under statutory law, the risk of accidental loss or damage passes at the moment the contract is concluded (Section 1064 of the ABGB). In practice, parties frequently deviate from this default rule by stipulating that risk transfers only upon physi - cal delivery. Contracts should also clearly identify the applicable law and designate the competent court or arbitration tribunal for any disputes. 6.2 Issues in Cross-Border Art Sales Cross‑border sales are influenced by international pri - vate law and customs regulations. In the absence of a choice‑of‑law clause, the applicable law is determined by the Private International Law Act (IPRG), which gen - erally assigns jurisdiction to the state where the seller has their habitual residence. Because Liechtenstein forms a customs union with Switzerland, the Swiss VAT Act applies to the sale of artworks in Liechten - stein, with the current standard VAT rate set at 8.1%. The import and export of cultural property are gov - erned by the Swiss KGTG. This legislation requires specific documentation for cross‑border movements and may, in certain cases, necessitate an export licence from either Swiss or Liechtenstein authori - ties. Owners of registered cultural goods must notify the Office of Culture before transporting such items abroad. Any unauthorised export of protected cul - tural property is considered null and void, and those involved may face criminal penalties. These regula - tions ensure that the movement of cultural assets complies with established international standards. 6.3 Gallery and Auction House Liability for Fake Art Professional galleries and auction houses are gener - ally liable for the authenticity of the works they sell. In professional transactions, authenticity is considered an implicitly warranted characteristic. If a work is later found to be inauthentic, the buyer may assert warran - ty claims or rescind the contract on the basis of error.
Auction houses often include liability exclusions in their terms and conditions. However, these exclusions are subject to judicial review and may be deemed invalid if considered unconscionable. In practice, an intermediary’s liability often depends on the level of due diligence performed before the sale. Galleries that provide extensive provenance documentation are typically in a stronger position to defend themselves against allegations of negligence. At the same time, the legal system places significant value on consumer protection, particularly in sales involving private individuals. This framework encour - ages a high standard of professional conduct and thorough verification practices across the Liechten - stein art market. 6.4 Pre-Sale Checks for Auction Houses and Galleries Art market professionals have specific due diligence obligations under the Swiss KGTG and the Liechten - stein KGG. They must establish the identity of the seller and obtain a written declaration confirming the seller’s right to dispose of the work. Records of these checks must be maintained for 30 years (Article 16 of the KGTG), ensuring that the history of the work can be reconstructed if legal issues arise in the future. In addition, galleries are required to verify that the work is not listed in any registers of stolen or looted art. They must also ensure that the transaction does not breach export or import restrictions of the country of origin. For transactions exceeding certain thresh - olds, compliance with the Due Diligence Act (SPG) is also mandatory. These checks form an essential part of risk management and help protect intermediaries from both legal exposure and reputational harm. 6.5 Role and Responsibilities of an Art Adviser An art adviser typically acts as an agent under a man - date agreement (Section 1002 ff of the ABGB). In this role, the adviser owes both a duty of care and a duty of loyalty to their principal. These duties include acting in the client’s best interests and disclosing any poten - tial conflicts of interest. The adviser is also required to provide the principal with complete and accurate accounts of all activities undertaken on their behalf.
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