Gianmaria Ajani (Turin/Bonn): From Property to Contract: A Proposal to Govern Some Challenges Brought to Private Law by Contemporary Visual Arts


In many area of human activity we perceive the overcoming of the traditional distinction between production and consumption.This is particularly true in the realm of Art, where Visual Artists production is more “liquid” than ever: having blurred the borders between production and fruition, creation and copy, readymade and original work, many have moved beyond a simple “art of appropriation” -which naturally infers an ideology of ownership- gliding instead towards an activity based on a collective ideal: sharing.
However, Visual Arts, would they be ancient, modern, or contemporary ones,  are governed by a wide set of norms and regulations – both at the national and international levels-  whose scheme has remained throughout the years unmodified. Sure, amendments have been taken, to update the 130 years old text of the Bern Convention, and national Copyright laws had been overtime reformed. What has not been modified, in spite of a revolutionary transformation of Visual Arts occurred in the last 100 years, is the core of the regulatory scheme, based on Property Law.

As it is well known, Property law responds, in any jurisdiction, to the traditional question: Who Owns What ? This main function assigned to Property law is sustained by a set of taxonomies, aimed to deploy the possible “Who”(subject) and the suitable “What”(object). Within this scheme, let us call it “Classic Property Law” contracts play an auxiliary role; in particular, contracts of sale regulate the circulation of goods. For our purposes, a contract of sale governs the transfer of property over an Artwork\Object from an Owner (in primis the Subject\Artist) to a Buyer (such as a collector, an art dealer, a museum, and so forth).

And here is my point: the transformation occurred to both the Subject\Artist and the Object\Artwork during the last 100 years has not been assisted by a change in the legal taxonomies. Evidence of this assumption is the increased number of litigations and cases dealing on issues related to a functional adjustment of the “Who Owns What ?” paradigm to the reality of Contemporary Art deals. Those lawsuits told us already decades ago that judges, bureaucrats, customs officials were not any more able to identify the “What”, while more recently other claims arise between curators and artists, claims based on a diverse understanding of the meaning of “Owning” by the two sides of the deal. Numberless then, are the difficulties encountered by buyers of conceptual artworks, due to evident flaws in the classic legal determination of the “What”, whenever the object has been dematerialized (conceptual art). 

And, moreover, how can’t we consider Relational Artists, whose artworks, rather than being an encounter between a viewer and an object, produces encounters between people, while the meaning is elaborated collectively. Or the assertion, as part of the artistic process, of an enduring and continuing relation with the Artwork, that has been conceived by some artists, even beyond the borders of their moral rights, almost an “intrusion” in the rights of the Owner, according to classic law. These evidences call for a rethinking of the role of Property law in managing the circulation of artworks/art-actions; the hypothesis is that while Property law is not well-designed any more to govern the challenges posed by some Artists, a functional, better tailored, response could arise from Contract law.

The Contract, as a binding formalization of a process negotiated between fully-informed parties, has received a new, more complex role in the creations of some conceptual artists, interested on themes such as: the promise, the gift, the conversation. Also, contracts have begun to attract more attention in areas such as Art in Public Spaces; here, the complexity of the relationship between parties commissioning  the artwork, artists, and users makes the contractual format a valuable means for enabling information to be shared and responsibility to be assigned.

Within Europe, a proactive role in adapting Classical Private Law, particularly the Law of Contracts, to a profoundly changing setting of market relations has been played by legal scholars, judicial courts, EU institutions. As a result, new spaces of contractual relationships have been established, mostly based on an increase in the duties to inform the contractual partner; other ways to ease the path of social interactions are developing, such as the interesting concept of “postcontract duties” (nachwirkende vertragspflichten).

All those efforts share a common trait, namely the overcoming of the “rigidity” of the classical Contract of Sale, and of its boundaries, tightly designed by the Law of Property.

(Prof. Dr. Gianmaria Ajani)

Curriculum Vitae

Prof. Dr. Gianmaria Ajani received his degree in law from the University of Turin in 1979. Subsequently he taught at various universities around the globe. He was a visiting scholar in Moscow and Leiden as well as a visiting professor in Berkeley, Fribourg, Wuhan, Bergen, and most recently in London. From 1987 to 1996, Gianmaria Ajani was Professor at the University of Trento, where he also served as Director of the Department of Law. Since 1996, he is Professor of Law at the University of Turin and holds the chairs of Comparative Legal Systems, Art & Law, and Contracts. In addition, he served as Director of the Legal Department from 1998 to 2004 and as Dean of the Law Faculty from 2009 to 2013. He has been Rector of the University of Turin (2013-2019).

Prof. Dr. Gianmaria Ajani has worked as legal expert and consultant for various international organisations such as the IMF, the EU Commission, the Council of Europe, the UNDP, the GIZ and the ILO. Furthermore, he served as an expert on legal reforms in China, Russia, Albania and Vietnam. He was also appointed by the OSCE as an expert to facilitate dialogue between the Ukrainian central government and the Crimean authorities.

He is author of numerous articles for national and international journals and co-editor of the journals "Brill Research Perspectives in Art and Law" and "Contratto e impresa/Europa". Prof. Gianmaria Ajani was awarded an honorary doctorate from the University of Savoie Mont Blanc. Moreover, he is Honorary Professor at the Shanghai Normal University and at the Zhonghan University of Economics and Law, Wuhan.

Since October 2019, Prof. Dr. Gianmaria Ajani is a Fellow at the Käte Hamburger Kolleg "Law as Culture" in Bonn.