PORTUGAL Law and Practice Contributed by: João Valadas Coriel, Sofia Quental, António Vieira and Inês Grácio, Valadas Coriel & Associados
tion that the parties are not subject to applicable restrictive measures. • Termination and liability: grounds for contract termination (eg, non-payment, misrepresentation), tort liability and right of reimbursement should be addressed. • Dispute resolution and applicable law: jurisdiction and applicable law (the Portuguese Civil Code and the Cultural Heritage Law) should be addressed, as well as the option for mediation or arbitration. • Other provisions: key legal considerations should be addressed, including the assignment of con - tractual rights and obligations, procedures for amendments to the agreement, and the treatment of vacant or invalid provisions. The liability of a living artist in cases where their representatives cease to act on their behalf should be clarified, ensuring continuity and legal certainty in contrac - tual relationships. 6.2 Issues in Cross-Border Art Sales When selling and transferring an artwork abroad, sev - eral key legal issues under Portuguese law are con - sidered, as follows. • Export controls and heritage restrictions: Export or temporary dispatch may be subject to prior notifi - cation or authorisation depending on the classifica - tion status, age and cultural relevance of the work. Certain movable cultural goods older than 50 years and not classified or inventoried may be subject to prior communication, allowing the authorities to assess potential heritage protection before depar - ture. Cross-border transactions may also raise res - titution risks where there are gaps in provenance or potential ownership disputes. • Pre-emption rights: In specific circumstances, the Portuguese state may exercise a statutory right of first refusal in relation to protected cultural assets. • Applicable law and jurisdiction: Governing law, jurisdiction and dispute resolution clauses should be carefully assessed in international transactions. • Copyright considerations: International sales may require analysis of copyright subsistence and dura - tion under applicable frameworks, including the Berne Convention for the Protection of Literary and Artistic Works, particularly where reproduction or digital dissemination is contemplated.
• Sanctions and regulatory compliance: Transactions involving high-risk jurisdictions, designated per - sons or restricted goods require attention in light of applicable sanctions and trade control regimes. • Tax, customs and logistics: VAT treatment, cus - toms formalities and allocation of transport and insurance risk should be addressed contractually. • AML and beneficial ownership: High-value transac - tions may trigger enhanced due diligence obliga - tions, including scrutiny of beneficial ownership and payment structures. • Digital assets and tokenised works: Where digital artworks or NFTs are involved, additional issues may arise regarding territorial nexus and the trans - fer of underlying rights. 6.3 Gallery and Auction House Liability for Fake Art In Portugal, gallery owners and auction houses are subject to civil, criminal and administrative liabilities if they sell inauthentic or plagiarised artworks. How - ever, liability is not automatic and will depend on the standard of care exercised, the representations made to the buyer and the specific contractual framework governing the transaction. From a civil law perspective, liability may arise under contractual or tort principles, potentially leading to termination of the agreement, reimbursement of the purchase price and damages. Criminal liability may be engaged in cases involving fraud, copyright infringe - ment or money laundering. Administrative sanctions may also apply where regulatory obligations, including authenticity or compliance duties, are breached. In the context of digital artworks and NFTs, addition - al complexity arises. The existence of a blockchain token does not in itself confirm the authenticity of the underlying work or the ownership of associated intel - lectual property rights. Liability may stem not only from material falsification but also from misleading representations regarding authorship, rights or the scope of the asset being sold. Where a gallery or auction house demonstrates that it conducted appropriate due diligence in accordance with market standards and acted without knowledge
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