PORTUGAL Law and Practice Contributed by: João Valadas Coriel, Sofia Quental, António Vieira and Inês Grácio, Valadas Coriel & Associados
• mandatory reporting – the discoverer must report the find within 48 hours to the relevant cultural her - itage authority or police, which may adopt appro - priate measures to secure and safeguard the asset; • intervention and protection – the state can take immediate action to safeguard and regulate the discovered item; and • right to compensation – where legally applicable, if the find has commercial value, the discoverer may be entitled to a reward under the applicable law. 6. Sale of Art Objects Domestically and Abroad 6.1 Key Clauses in Art Sale Contracts The clauses that need to be reflected in art sale con - tracts under Portuguese jurisdiction vary depending on the parties involved and the artwork being sold. Such clauses are addressed under general sales law, copyrights law, consumer protection and cultural heritage laws. In general terms, the following main clauses should be considered. • Full identification of the parties, including licence/ registration number if one of the parties involved is a gallery or an auction house. • Full description of the artwork – namely the title, artist name, dimensions, medium, year of crea - tion, provenance, state of conservation, conducted interventions, damages, care and maintenance disclaimers, identification of its origin, whether it is a commissioned work, classifications and/or asso - ciated classification processes (if applicable), the owners of moral rights, the holders of economic rights and/or authorisations, and/or clarification of whether the artwork belongs to the public domain. • Purchase price and payment terms – namely the total price, applicable taxes and/or customs, pay - ment methods and deadlines. • Delivery, transportation and insurance, including: (a) conditions for delivery or collection; (b) courier identification and insurance related to such transportation, if applicable; (c) report sheets addressing the condition of the artwork when collected and/or delivered; and (d) risk distribution.
• Transfer of ownership and intellectual property rights: clarification of the moment of ownership transfer, and which economic copyrights and/or authorisations follow the purchase of the artwork (particularly for a commissioned artwork – obra por encomenda ). For such purposes, all holders of moral rights and any other holders of economic rights and/or authorisations should be identified. The terms and conditions of resale rights, if appli - cable, should also be addressed. Where relevant, the agreement should also clarify the rights of digi - tal reproduction, online dissemination, tokenisation or other forms of digital exploitation. • Authenticity and warranties on whether the art - work is authentic and free from encumbrances: for such purposes, a certificate of authenticity should be provided, and the liabilities associated with an artwork considered inauthentic after such purchase should be addressed. • Cultural heritage and export restrictions and authorisations: the agreement should address whether the artwork is classified, inventoried or subject to any pending classification procedure under Portuguese cultural heritage legislation. Where applicable, compliance with the Cultural Heritage Law should be ensured, including obser - vance of the state’s statutory right of first refusal and any export restrictions. In addition, certain movable cultural goods – including works older than 50 years that fall within the scope of the herit - age framework and are not classified or invento - ried – may be subject to prior communication or authorisation before export. The contract should allocate responsibility for obtaining any required export licences or prior notifications and regulate the consequences of refusal, suspension or delay, including the allocation of costs and termination rights. • Right of first refusal and pre-emptive rights: if the artwork is classified as cultural heritage, the Portuguese state’s right of first refusal needs to be addressed as a condition precedent for the agree - ment conclusion. • Regulatory compliance and representations – where appropriate, the contract may include rep - resentations regarding compliance with AML and international sanctions regimes, identification of beneficial ownership where required, and confirma -
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