The law judges a commission against the contract. Taste plays no part.

When a commissioned work arrives and disappoints, the first question is the contract. No statute in the UK or in France measures an artistic result against the client’s taste. The law compares the work with what the contract said it would be. It also measures how the work was made against a standard of care, which the statute writes into the contract whether or not the parties mention it.

Published by ArtisDomus, written by Polina Surina.

So the answer turns on two things: what the document specified, and who the client is. In the United Kingdom a private client and a company fall under different Acts. And English rules and French rules differ.

The Consumer Rights Act 2015 defines both parties. A trader is a person acting for purposes of their trade, business, craft or profession, personally or through someone acting in their name or on their behalf (s. 2(2)). Craft is on that list. A consumer is an individual acting for purposes wholly or mainly outside their trade, business, craft or profession (s. 2(3)). A trader who claims otherwise must prove it (s. 2(4)).

A commission is a sales contract under section 5(2), which sets three conditions. The goods are to be made or produced, and the trader agrees to supply them to the consumer. Once supplied, the consumer will own them. And the consumer pays or agrees to pay the price. Goods means any tangible moveable items (s. 2(8)), and a painting is one.

The service side is Chapter 4, which applies to a contract for a trader to supply a service to a consumer (s. 48(1)). A Chapter applies even if the contract also covers something under another Chapter; the Act calls this a mixed contract (s. 1(4)). Two or all three Chapters can apply to one contract (s. 1(5)). So a single commission can be a goods contract and a services contract at once, with both sets of terms.

Where the client is a business, none of that applies, and the Supply of Goods and Services Act 1982 takes over. Its definition of a contract for the transfer of goods leaves out any contract covered by Chapter 2 of Part 1 of the 2015 Act (s. 1(1)). Its definition of a contract for services leaves out those covered by Chapter 4 (s. 12(1)). The two Acts are drafted to split the ground between them.

One question of classification remains. Contracts for the sale of goods fall outside Part I of the 1982 Act (s. 1(2)(a)). So a business commission falls under the 1982 Act if it is a contract for work and materials, and under the law of sale if it is a contract of sale. Case law draws that line.

The 2015 Act applies to contracts made on or after 1 October 2015. The Consumer Rights Act 2015 (Commencement No. 3) Order 2015, S.I. 2015/1630, brought sections 1 to 47 into force that day (art. 3). Under its article 6, the provisions brought into force by the sub-paragraphs it names do not apply to any contract made before 1 October 2015.

Every contract to supply goods by description includes a term that the goods will match the description (s. 11(1), 2015 Act). If the supply is by sample as well as by description, matching the sample is not enough. The goods must also match the description (s. 11(2)). A change to the pre-contract information about the main characteristics of the goods has no effect unless the consumer and the trader expressly agree it (s. 11(5)). This holds whether the change is made before the contract or later.

Section 13 covers a contract to supply goods by reference to a sample that the consumer sees or examines before the contract is made. Two terms are then included. The goods will match the sample, except for any differences pointed out to the consumer before the contract is made. And the goods will be free from any defect that makes their quality unsatisfactory and that a reasonable examination of the sample would not reveal. In a commission, a study, a sketch or a maquette shown to the client brings section 13 into play.

Every contract to supply a service includes a term that the trader must perform the service with reasonable care and skill (s. 49(1)). That standard measures how the work was done. Whether the client likes the result is a separate matter.

Spoken words can count as well as written ones. Anything said or written to the consumer, by or on behalf of the trader, about the trader or the service is a term of the contract. That applies if the consumer takes it into account when deciding to enter the contract, or when making any later decision about the service (s. 50(1)). This is subject to anything qualifying it that the trader said or wrote on the same occasion, and to any change expressly agreed (s. 50(2)). A change to information given under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 has no effect unless expressly agreed (s. 50(4)).

So in a consumer commission the conversation counts. A trader who says the work will be a given size, in a given medium, delivered by a given date has made those terms of the contract (s. 50). A statement about the main characteristics of the goods is a term too (s. 11(4)). The written document still decides most cases, for a simple reason: what was said has to be proved, and what was written is proved already.

The consumer has three statutory remedies when the goods do not conform to the contract (s. 19(3)). This applies where a term required by sections 9 to 14 or section 16 has been breached. They are the short-term right to reject (ss. 20 and 22); the right to repair or replacement (s. 23); and the right to a price reduction or the final right to reject (ss. 20 and 24).

The ordinary remedies stay available alongside these (s. 19). The Act names claiming damages, seeking specific performance, and relying on the breach against the trader’s claim for the price. The consumer cannot recover twice for the same loss. The statutory scheme adds to the general law of contract.

Where the service does not conform to the contract, the consumer has two remedies: repeat performance and a price reduction (s. 54(3)).

Repeat performance means the trader must perform the service again, as far as needed to complete it in line with the contract (s. 55(1)). It must be done within a reasonable time and without significant inconvenience to the consumer, with the trader bearing any necessary costs, including labour and materials (s. 55(2)). The right falls away where completing the service in line with the contract is impossible (s. 55(3)). Reasonable time and significant inconvenience are judged by the nature of the service and the purpose it was for (s. 55(4)).

Section 55(3) is where an artistic commission usually lands. A painting already made cannot be performed again the way a repair can be repeated. Where repeat performance is impossible, the consumer goes straight to section 56.

The price reduction is a right to have the price cut by an appropriate amount, with a refund of anything already paid above the reduced amount (s. 56(1)). Where appropriate, the reduction can be the full price (s. 56(2)). The remedy opens where repeat performance cannot be required under section 55(3), or where the trader has not completed it within a reasonable time and without significant inconvenience (s. 56(3)). The refund is due without undue delay, and in any event within 14 days starting on the day the trader agrees that the consumer is entitled to it (s. 56(4)).

The general law stays available (s. 54(6) and (7)). Other remedies can be sought alongside these or in their place, but the consumer cannot recover twice for the same loss. The Act lists claiming damages, recovering money paid where the consideration has failed, and seeking specific performance. It also lists relying on the breach as a defence to a claim for the price, and treating the contract as at an end.

Section 3 of the Supply of Goods and Services Act 1982 covers a contract for the transfer of goods where the supplier transfers, or agrees to transfer, ownership by description. The contract then carries an implied condition that the goods will match the description. If the transfer is by sample as well as by description, matching the sample is not enough. The goods must also match the description (s. 3(3)).

Section 4(1) starts from silence: no condition or warranty about quality, or fitness for a particular purpose, is implied except as the section provides. Section 4(2) then implies one where the supplier transfers the goods in the course of a business: the goods must be of satisfactory quality. That means the standard a reasonable person would regard as satisfactory, taking account of any description of the goods, the price if relevant, and all other relevant circumstances (s. 4(2A)). Sections 4(4) and 4(5) add an implied condition of reasonable fitness where the client makes a particular purpose known to a supplier acting in the course of a business.

Where the supplier acts in the course of a business, a contract for services includes an implied term of reasonable care and skill (s. 13). The section extends to England and Wales and Northern Ireland.

Two differences matter to a company commissioning a work. The 1982 Act has no equivalent of section 50 of the 2015 Act, so no statute turns a spoken assurance into a term. And these sections carry no remedy scheme of their own: no thirty-day right to reject, no one repair or one replacement, and no statutory price reduction. The general law of contract decides what follows from a breach.

Article 1710 of the code civil defines it: le louage d’ouvrage est un contrat par lequel l’une des parties s’engage à faire quelque chose pour l’autre, moyennant un prix convenu entre elles. In plain terms, one party undertakes to do something for the other, for an agreed price. The same contract appears in the third paragraph of article L. 111-1 of the code de la propriété intellectuelle: concluding it leaves the author’s rights intact.

A work that does not exist yet can be the object of the obligation, because the performance (prestation) may be present or future (art. 1163). It must be possible, and either defined or determinable. It is determinable when it can be deduced from the contract, or from usage or the parties’ prior dealings, without the parties needing a fresh agreement. That is the legal reason a commissioning document has to describe the work.

Article 1787 splits commissions into two kinds. The maker may supply only their work, or supply the materials as well. An artist who supplies the canvas, panel, bronze or stone is in the second case.

Risk follows that split. If the maker supplies the materials and the thing is destroyed in any way before delivery, the loss falls on the maker (art. 1788). The exception is where the client was in default in taking delivery. If the maker supplies only their work and the thing is destroyed, the maker answers only for their own fault (art. 1789). In that case, if the thing is destroyed before the work has been received, the maker has no payment to claim. That applies where the maker was not at fault and the client was not in default in checking the work. The exception is a loss caused by a defect in the materials (art. 1790).

So a commissioning document needs two dates that clients rarely write down: the date of delivery, and the date on which the work is checked and received.

Where an undertaking was not performed, or was performed imperfectly, the other party has five options (art. 1217, code civil). The code calls the party owed the performance the creditor, and the party who owes it the debtor.

Remedies that are compatible may be combined, and damages may always be added to them (art. 1217).

Two points matter most. Articles 1221 and 1223 both require a mise en demeure, so in France the first step is a formal notice. And the price reduction under article 1223 is open to a creditor who has not yet paid all or part of the price. That ties it to what is still owed.

Article 1224 also sets the threshold for ending the contract. Without a resolutory clause, the non-performance must be sufficiently serious.

Does the work match the description (2015 Act, s. 11; 1982 Act, s. 3)? Does it match the sample (2015 Act, s. 13; 1982 Act, s. 3(3))? Was the service performed with reasonable care and skill (2015 Act, s. 49; 1982 Act, s. 13)? Can the performance be deduced from the contract (code civil, art. 1163)? Is the non-performance sufficiently serious (art. 1224)? None of these asks whether the client likes the result.

That is why the commissioning document carries the weight. It works only if it is specific about things that can be checked against the object when it arrives. These are the dimensions, the medium and support, and the date of delivery. They include whether a study or a maquette is a sample, and whether the finished work must match it. They also include the point at which the work is checked and received, and whether payment is staged. In France, staged payment is what keeps a price reduction available under article 1223.

A summary of the law. It is not legal or tax advice.