Argued April 8, 2014.
This opinion is subject to formal revision before publication in the Massachusetts reporter.
Certification of a question of law to the Supreme Judicial Court by the United States Bankruptcy Court for the District of Massachusetts.
Andrew Z. Schwartz ( Joshua S. Pemstein with him) for the plaintiffs.
Kathleen R. Cruickshank for the defendant.
Steven B. Levine, Nicolas M. Dunn, William D. Currie, & Jessica T. Lu, for Arts & Business Council of Greater Boston & another, amici curiae, submitted a brief.
Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.
The consignment of fine art is governed by G. L. c. 104A, which provides that, upon delivery of a work of fine art to a consignee, the consignor shall provide a written statement with specified information about the work. See G. L. c. 104A, § 2 ( b ). A judge of the United States Bankruptcy Court for the District of Massachusetts has certified the following question pursuant to S.J.C. Rule 1:03, as appearing in 382 Mass. 700 (1981), concerning the effect of a consignor's failure to deliver a written statement as required by G. L. c. 104A, § 2 ( b ):
" Under Mass. Gen. Laws. c. 104A, the Massachusetts fine art consignment statute ('Chapter 104A'), must a consignor transmit a written 'statement of delivery' to a consignee as a necessary prerequisite to the formation of a 'consignment'; or, alternatively, under Chapter 104A does a consignment arise upon the delivery by a consignor, and acceptance by a consignee, of a work of fine art for sale on consignment, regardless of whether a written 'statement of delivery' is sent by the consignor?"
For the reasons we discuss, we answer, " No, a written statement of delivery is not a prerequisite for the formation of a consignment under G. L. c. 104A."
We summarize certain undisputed facts in the order of certification and in the record before us. Kenneth Wynne, III, and Allison Wynne (the Wynnes) owned and operated Wynne Fine Art, Inc. (Wynne Gallery), in Chatham. Wynne Gallery accepted art works that the creditor artists delivered to the gallery, and agreed to sell the art works and pay fifty per cent of the proceeds to the creditor artists. In 2013, the Wynnes filed for personal bankruptcy under Chapter 7 of the United States Bankruptcy Code, and the appointed bankruptcy trustee of the bankruptcy estates moved to sell many of these art works.
Seeking to enjoin the sale, the creditor artists commenced an adversary proceeding against the bankruptcy trustee in the United States Bankruptcy Court for the District of Massachusetts. The creditor artists sought a declaration that the art works are held in trust under the Massachusetts fine art consignment statute, G. L. c. 104A, and therefore are not the property of the bankruptcy estates. The bankruptcy trustee filed a counterclaim seeking a declaration that G. L. c. 104A is inapplicable to the art works at issue because, when the creditor artists delivered their work to Wynne Gallery, they did not provide a written statement describing the art work as required by G. L. c. 104A, § 2 ( b ). The creditor artists argue that the delivery and acceptance of the art work alone sufficed to create a consignment relationship protected under the fine art ...