GERMANY Law and Practice Contributed by: Tanja Schienke-Ohletz, Flick Gocke Schaumburg
If the cultural property belongs to the state or a public corporation, there are claims for surrender. The mere fact that it is cultural property is not suffi - cient to effect surrender by the owner. However, there are often restrictions on the owner’s rights. Monument protection: Even if ownership remains with the private individual, state monument protection law may impose extensive restrictions on the use, altera - tion and sale of the cultural property. Such provisions restricting the content and scope of ownership are permissible under Article 14 (1) sentence 2 of the Ger - man Constitutional Law as long as they are propor - tionate and serve the common good. In summary, depending on the circumstances and state law, the state may acquire ownership of the find, secure and confiscate the cultural property, demand its surrender or restrict its use; claims for compensa - tion by private individuals must be taken into account. 6. Sale of Art Objects Domestically and Abroad 6.1 Key Clauses in Art Sale Contracts In principle, German law stipulates that an art sale contract is a typical purchase agreement, meaning that the general rules governing purchase agreements apply. The seller undertakes to hand over the artwork to the buyer and to transfer ownership of it. The art - work must be free of material defects and defects of title. The buyer is obliged to pay the agreed purchase price and to accept the artwork. It is necessary to provide precise details of the art - work’s value, such as the artist, title, technique, dimensions, year of creation and provenance. Provenance in particular is an important factor in the art market. In art law, provenance refers to the history of the origin and ownership of a work of art – ie, the complete documentation of the ownership and pos - session of the work from its creation to the current owner, previous owners, storage locations, donations or inheritances. It can also be significant when works of art lead to claims for restitution (eg, in the case of
cultural property confiscated as a result of Nazi per - secution) or to the fulfilment of legal due diligence obligations, in particular under the Cultural Property Protection Act. Complete proof of provenance increases the value of the work and is often a prerequisite for legally secure trading. If the provenance is problematic, this must also be disclosed to the buyer if it is not complete. In the art trade, an exclusion of warranty – especially for authenticity and origin – is common and generally permissible, provided there is no malice or guarantee. The seller is not liable for defects that are known to the buyer at the time of conclusion of the contract. Furthermore, the purchase price and due date are specified, as well as the time and modalities of deliv - ery. Catalogue information or expert opinions are generally not binding agreements on quality, but purely infor - mational, unless they are expressly agreed as such. Rights of withdrawal may also be voluntarily agreed. In summary, a typical art purchase agreement contains provisions on the object of purchase, price, transfer/ ownership, quality, warranty/liability, transfer of risk and other modalities; special features exist in the qual - ity agreement and exclusion of warranty/liability. 6.2 Issues in Cross-Border Art Sales When selling a work of art with transfer abroad, the following legal aspects in particular must be observed. In terms of the Cultural Property Protection Act, if the item is cultural property, its export is subject to author - isation if the work of art exceeds certain age and value limits or is listed in a register of nationally valuable cultural property. From a German perspective, no dis - tinction is made between EU and third countries. If an export licence is not available, penalties and fines may be imposed. When exporting and, in particular, when importing into the country of destination, the legality of the export from Germany and, if applicable, the provenance of the artwork must be documented by means of appro -
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