In the weeks that have passed since one of Banksy’s ‘Girl with a Balloon’ paintings was half shredded, by remote control, during a Sotheby’s sale there has been much speculation about the legal issues the ‘incident’ gave rise to. Two of the sale stipulations were that the work be placed in the evening sale and be put on display during the sale by being hung in the room where the auction took place. The final decision to allocate the Banksy as the last lot of the evening auction was made by Alex Branczik, Sotheby’s head of contemporary art in Europe.

The Banksy painting was encased in a Victorian-style frame, deep enough to conceal a shredding mechanism. The frame certainly turned out to be the elephant in the room that nobody spotted. The auctioneer on the night later pointed out that Banksy often employed misshapen frames in his works. Alex Branzcik has since stated that Sotheby’s did approach Pest Control before the auction, and did ask if the frame could be removed. But the request was rebuffed. 

'Caveat Emptor' and the fine arts of legal creativity

An additional twist in the tale came with the announcement that the original buyer, an anonymous female European collector, decided to proceed with the sale for £1.04m. This figure includes £182,000 in fees. Perhaps the sale only completed because Banksy designated it a completely new work. Only the buyer knows. Pest Control did, however, give it the title ‘Love Is In the Bin (2018)’ and issued a new authentication certificate.

Had the sale not completed the issue of who should – and would - have been expected to pay the bill most definitely had the potential to be highly contentious. What is the difference between an intentional work of art, and a destroyed painting? If a piece of art turns out to be a different work to the one that appeared in the catalogue, to what extent should a buyer now feel a strong shiver of beware?

Does a sale by auction complete when the auctioneer announces completion? Is completion secured by the banging of a hammer or by some other market customary means? Does the bang of the hammer denote the transfer of ownership?  Does the bang of the hammer also necessarily denote the transfer of liability? Sotheby’s is upbeat. Alex Branczik views the ‘shredding incident’ as “the first artwork in history to have been created live during an auction”.

Legal distinctions between ‘destruction’ and ‘reincarnation’

If the new owner had failed to be upbeat about the art history value of a semi-shredded painting, could she have legally deemed the sale void? Given that the ‘Girl with a Balloon’ painting was half shredded by remote control immediately upon finalisation of the sale there was no actual physical transfer of the artwork.

Banksy has ensured that the legal distinctions between ‘destruction’ and ‘reincarnation’ have become delightfully interesting. But the basis on which an auctioneer can bring a claim against a seller for transforming an auction item without the auctioneer’s knowledge has been reserved for another day.