An art collector commissioned an artist to create a sculpture for the collector. The artist wanted a substantial amount of money for the sculpture. This caused the collector some worry regarding possible dissatisfaction with the artwork once it was
completed. To ensure that payment would be made only if the collector was satisfied with the sculpture, a condition was written into the commission contract. It required that the collector would have to be satisfied with the artwork, relying on the collector's taste and judgment, before an obligation of payment would be created. The artist never imagined that a collector could possibly refuse a creation of his and allowed the condition to be placed within the contract. At the completion of the sculpture, the collector claimed that she did not care for the artwork and therefore refused to pay. Can the artist force payment in this situation? Would it help if the artist could establish that the collector actually approves of the sculpture but has temporarily run short on funds, and that this is the true motivating factor in refusing to accept the sculpture?
An agreement can be made that requires that a performance will be accepted only based on the satisfaction of one of the parties or a designated third party. Courts are tempted to apply a reasonable person standard in instances such as this, but when personal taste is such an important element, as in this case, the courts generally hold that the designated party must be satisfied to allow recovery for the acting party. That being said, if the artist in this case can establish that there is a lack of good faith on the part of the collector, and that the collector is withholding approval of the work merely because of lack of funds, courts would hold that the performance is sufficient.?
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