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SJC-11519

EVE PLUMB & others1 vs. DEBORA A. CASEY, trustee.2

Suffolk. April 8, 2014. - September 8, 2014.

Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & 

Lenk, JJ.3

Art. Consignment.

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.

 

1 Karen Hollingsworth, John Kuhn, Marjie Kuhn, Cynthia 

McCallister, William McCarthy, Elizabeth Mumford, Deborah 

Quinn-Munson, Anne Neely, John Schieffer, Kat Scott, Dylan Stark, 

Robert W. Stark, Jr., and Susan Sugar.

2 Of the bankruptcy estates of Kenneth Wynne, III; Allyson 

Wynne; and Wynne Fine Art, Inc.

3 Chief Justice Ireland participated in the deliberation on this 

case prior to his retirement.
2

DUFFLY, J. 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.4 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."

Background. 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 

 

4 We acknowledge the amicus brief of Arts & Business Council of 

Greater Boston and Volunteer Lawyers for the Arts of Massachusetts 

filed in support of the creditor artists.
3

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.5

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 consignment statute. Acknowledging that the parties' 

opposing interpretations of G. L. c. 104A raise a dispositive 

 

5 The bankruptcy trustee moved to sell approximately 130 

paintings; the creditor artists claim an interest in approximately 

eighty-five of these works.
4

question as to which there is no controlling precedent, the judge 

certified the above question to this court.

Discussion. General Laws c. 104A, § 2 (b), provides that:

"A consignor who delivers a work of fine art hereunder 

shall, upon delivery of the work of fine art, furnish to the 

consignee a separate written statement of delivery of the work 

of fine art, which shall include at a minimum the following 

information: (1) the artist's name and the name of the owner 

of the work of fine art; (2) the title, if any, of the work of 

fine art; (3) the medium and dimensions of the work of fine art; 

(4) the date of completion of the work of fine art; (5) the date 

of delivery of the work of fine art; and (6) the anticipated 

fair market value of the work of fine art."

The bankruptcy trustee argues that the word "shall" in G. L. 

c. 104A, § 2 (b), should be interpreted as a mandatory obligation, 

see Hashimi v. Kalil, 388 Mass. 607, 609 (1983), and, thus viewed, 

the delivery of a written statement by the consignor is required to 

effectuate a consignment under the fine art consignment statute. 

This argument is unavailing both in considering the language of the 

statute as a whole and when viewed in light of the legislative purpose 

underlying the 2006 statutory amendments that inserted this 

provision. See St. 2006, c. 353, § 6.

1. Statutory language. In interpreting the requirements 

necessary to effectuate a consignment under the fine art consignment 

statute, our objective is to discern the intent of the Legislature 

from the text of the statute. See Champigny v. Commonwealth, 422 

Mass. 249, 251 (1996), quoting Lehan v. North Main St. Garage, 312 
5

Mass. 547, 550 (1942) ("The object of all statutory construction is 

to ascertain the true intent of the Legislature from the words used"). 

We consider the text of the statute "in connection with [its] 

development and history, and with the history of the times and prior 

legislation," Quincy City Hosp. v. Rate Setting Comm'n, 406 Mass. 

431, 443 (1990), and cases cited, in order to construe the statute 

as "a consistent and harmonious whole." EMC Corp. v. Commissioner 

of Revenue, 433 Mass. 568, 574 (2001), quoting State Tax Comm'n v. 

LaTouraine Coffee Co., 361 Mass. 773, 778 (1972).

While G. L. c. 104A, § 1, defines the term "consignment" under 

the fine art consignment statute,6 G. L. c. 104A, § 2 (a), sets forth 

specific requirements regarding the establishment of such a 

consignment:

"Notwithstanding any custom, practice or usage of the 

trade to the contrary, or any other language herein, whenever 

a consignor delivers . . . a work of fine art to a 

consignee . . . for the purpose of exhibition or sale, or both, 

on a commission, fee or other basis of compensation, the 

delivery to and acceptance of the work of fine art by the 

consignee shall constitute a consignment, unless the delivery 

to the consignee is pursuant to an outright sale . . . ."

 

6 Under G. L. c. 104A, § 1, a "[c]onsignment" is

"a delivery of a work of fine art under which no title to, 

estate in, or right to possession of, the work of fine art 

superior to that of the consignor shall vest in the consignee, 

notwithstanding the consignee's power or authority to transfer 

and convey to a third person all of the right, title and interest 

of the consignor in and to the work of fine art."
6

Thus, according to the plain statutory language, three elements are 

necessary to constitute a consignment of fine art7: (i) delivery of 

a work of art by the consignor, and (ii) acceptance by the consignee, 

(iii) for the purpose of exhibition or sale on commission.8 General 

Laws c. 104A, § 2 (a), states that, unless there is an outright sale 

of the art work, the occurrence of these three elements "shall 

constitute a consignment" "[n]otwithstanding . . . any other 

language herein." That the consignor provide a written statement 

 

7 "Fine art" is defined as:

"[A] painting, photograph, sculpture, functional 

sculpture, hologram, wearable art, drawing, fiber-based work, 

ceramic-based work, metal work, conceptual-based art, 

glass-based work, an installation, a work that is created or 

displayed using computer, digital devices and/or new technology 

such as, but not limited to, digital prints, digital 

photographs, CD Roms, DVDs, cyberart, a web/internet-based art 

work, a performance-based art work and the results of the 

performance such as, but not limited to, film, video, DVDs, CD 

Roms, a sound work, an electronic-based work, a work of graphic 

art, including an etching, lithograph, off set print, silk 

screen/screen print, or work of graphic art of like nature, a 

work of calligraphy, an artist's book, or a work in mixed media 

including collage, assemblage or any combination of the 

foregoing art media."

G. L. c. 104A, § 1.

8 "Delivery" is defined in G. L. c. 104A, § 1, as "the process 

of physically transporting a work of fine art from a consignor to 

a consignee, whether done by the consignor personally, by a 

professional transportation service, or by the services of an agent 

or dealer who acts on behalf of the consignor." "Acceptance" is not 

defined in G. L. c. 104A.
7

of delivery is not among the prerequisites for establishment of a 

consignment under G. L. c. 104A, § 2 (a).

General Laws c. 104A, § 2 (b), then sets forth the requirement 

of a writing upon delivery of a work of fine art. See notes 6 and 

7, supra. The bankruptcy trustee urges an interpretation of this 

provision that would make the delivery of a written statement an 

additional element necessary to effectuate a consignment. This 

interpretation fails to give effect to the plain language of G. L. 

c. 104A, § 2 (a), stating that the delivery and acceptance of art 

work for the purpose of exhibition or sale on commission "shall 

constitute a consignment" "[n]otwithstanding . . . any other 

language herein," unless there is an outright sale. If "shall" were 

interpreted in its mandatory sense in both G. L. c. 104A, § 2 (a), 

and G. L. c. 104A, § 2 (b), the provisions would be in conflict: 

under § 2 (a), a consignment could be effective without a written 

statement of delivery, and under § 2 (b), a consignment could not 

be effective without a written statement of delivery. In light of 

this conflict, it cannot be the case that "shall" is intended in its 

mandatory sense in both G. L. c. 104A, § 2 (a), and G. L. c. 104A, 

§ 2 (b). "Seemingly contradictory provisions of a statute must be 

harmonized so that the enactment as a whole can effectuate the 

presumed intent of the Legislature." See Wilson v. Commissioner of 

Transitional Assistance, 441 Mass. 846, 853 (2004).
8

Resolution of this apparent conflict is found in the phrase, 

"[n]otwithstanding . . . any other language herein," in the opening 

sentence of G. L. c. 104A, § 2 (a), which provides a clear indication 

that the use of "shall" in G. L. c. 104A, § 2 (a), is intended in 

a mandatory sense, whereas the use of "shall" in G. L. c. 104A, 

§ 2 (b), is intended in a directive sense.9 See Attorney Gen. v. 

Commissioner of Ins., 450 Mass. 311, 319 (2008), quoting Cisneros

v. Alpine Ridge Group, 508 U.S. 10, 18 (1993) ("The use of such a 

'notwithstanding' clause clearly signals the drafter's intention 

that the provisions of the 'notwithstanding' section override 

conflicting provisions of any other section"). "A statute should 

be construed so as to give effect to each word, and no word shall 

be regarded as surplusage." Ropes & Gray LLP v. Jalbert, 454 Mass. 

407, 412 (2009). To give meaning to all of the terms of G. L. 

c. 104A, § 2 (a), and to harmonize those terms with G. L. c. 104A, 

 

9 Our interpretation of the language in G. L. c. 104A, § 2 (a), 

and G. L. c. 104A, § 2 (b), is also supported by the principle that 

we "derive the words' usual and accepted meanings from sources 

presumably known to the statute's enactors, such as their use in other 

legal contexts and dictionary definitions." Seideman v. Newton, 452 

Mass. 472, 478 (2008), quoting Commonwealth v. Zone Brook, Inc., 372 

Mass. 366, 369 (1972). The definition of "consignment" in the 

Uniform Commercial Code, G. L. c. 106, and in legal dictionaries when 

G. L. c. 104A was enacted in 1978, see St. 1978, c. 286, and when 

it was amended in 2006, see St. 2006, c. 353, are in accord that a 

consignment is the delivery of goods to another for the purpose of 

selling the goods; none mentions a written statement of delivery as 

constituting a component of consignment. See G. L. c. 106, § 9-102 

(20); Black's Law Dictionary 380 (4th ed. 1957); Black's Law 

Dictionary 327 (8th ed. 2004).
9

§ 2 (b), we read G. L. c. 104A, § 2 (b), as providing a directive 

standard of practice, and not as adding an additional mandatory 

element for effecting a consignment under G. L. c. 104A, § 2 (a). 

See Wilson v. Commissioner of Transitional Assistance, supra

(interpreting "shall" in directive sense where doing so was necessary 

to harmonize statutory provisions).

2. Legislative context and history. Moreover, we interpret 

the word "shall" in G. L. c. 104A, § 2 (b), in a directive sense, 

rather than in a mandatory sense, where doing so is necessary to 

effectuate the primary purpose of the statute. See Wilson v. 

Commissioner of Transitional Assistance, supra; Boston v. Quincy 

Mkt. Cold Storage & Warehouse Co., 312 Mass. 638, 646-647 (1942), 

quoting Swift v. Registrars of Voters of Quincy, 281 Mass. 271, 276 

(1932) (term "shall" "is not of inflexible signification and not 

infrequently is construed as permissive or directory in order to 

effectuate a legislative purpose"). As discussed below, one of the 

legislative purposes for the enactment of G. L. c. 104A was to 

protect the interests of artists in their consigned works in the event 

that a consignee files for bankruptcy protection; this purpose 

supports the conclusion that the word "shall" in G. L. c. 104A, 

§ 2 (b), was intended in its directive rather in its mandatory sense.

The fine art consignment statute was enacted in 1978, see 

St. 1978, c. 286, and was amended in 2006, see St. 2006, c. 353, at 
10

which time G. L. c. 104A, § 2 (b), was added. See St. 2006, c. 353, 

§ 3. In determining the intent of the Legislature in adopting the 

2006 amendments, we consider "the cause of [the statute's] enactment, 

the mischief or imperfection to be remedied and the main object to 

be accomplished." Commonwealth v. Wade, 467 Mass. 496, 501 (2014), 

quoting Flagg v. AliMed, Inc., 466 Mass. 23, 28 (2013). We look to 

the language of preexisting statutes because, "[w]hen amending a 

statute or enacting a new one, the Legislature is presumed to be aware 

of prior statutory language." Ropes & Gray LLP v. Jalbert, supra

at 412-413.

The 2006 amendments to G. L. c. 104A were first introduced in 

January, 2005; the language of the proposed § 2 (a) was identical 

to that in the 1978 statute, and did not include the phrase "any other 

language herein" after the term "[n]otwithstanding." Compare 2005 

Senate Doc. No. 1838 with G. L. c. 104A, as inserted by St. 1978, 

c. 286. The Legislature did not adopt this version, but instead 

adopted a revised bill in March, 2006, see 2006 Senate Doc. No. 2461, 

which added both the provision in § 2 (b) requiring that a consignor 

furnish a written statement of delivery, and the qualification that 

§ 2 (a) is to apply "[n]otwithstanding . . . any other language 

herein."10 These simultaneous revisions further indicate that the 

 

10 The proposed § 2 (b) stated that a "consignee who accepts a 

work of fine art hereunder shall . . . furnish to the consignor a 
11

Legislature did not intend a consignment under G. L. c. 104A, 

§ 2 (a), to be conditioned or altered by the provision requiring a 

written statement of delivery in G. L. c. 104A, § 2 (b). See 

Campatelli v. Chief Justice of Trial Court, 468 Mass. 455, 468 (2014) 

(comparing versions of proposed legislation to ascertain legislative 

intent).

The 2006 amendments to the fine art consignment statute were 

enacted in the wake of the insolvency of two large art galleries in 

Boston that generated wide-spread public concern about the 

difficulties faced by artists seeking to reclaim their art work. See 

Ulrich & Jamieson, Muddled Waters: An Addendum on Consignment of 

Fine Art Law in Massachusetts, 37 J. Arts Mgt., L. & Soc'y 301, 302-304 

(2008) (insolvent galleries' failure to keep records of consigned 

art work severely jeopardized ability of artists to reclaim art work 

 

separate written statement of acceptance" (emphasis supplied). 

2005 Senate Doc. No. 1838. The revised version of § 2 (b), which 

was the version that was adopted, stated that a "consignor who 

delivers a work of fine art hereunder shall . . . furnish to the 

consignee a separate written statement of delivery" (emphasis 

supplied). 2006 Senate Doc. No. 2461. Placing the requirement to 

provide a written statement on the consignor rather than the 

consignee made sense in light of the recording system that the amended 

statute put in place. See supra. By adding the phrase 

"[n]otwithstanding . . . any other language herein" to § 2 (a) in 

2006 Senate Doc. No. 2461, the Legislature evidenced its intent that 

a consignor's failure to meet this requirement would not remove the 

consignment from the scope of the protections provided in G. L. 

c. 104A.
12

and funds from sales of art work).11 Viewed against this backdrop, 

and considered in conjunction with the other amendments to G. L. 

c. 104A enacted at that time, which also enhanced protections to the 

consignor,12 it is apparent that the directive of G. L. c. 104A, 

§ 2 (b), to provide a written statement of delivery was designed as 

 

11 A newspaper article concerning the passage of the 2006 

amendment to G. L. c. 104A, describes the extensive volunteer effort 

that was needed in 2003, in the aftermath of the bankruptcy of Boston 

Corporate Art, to enjoin the sale of hundreds of consigned paintings, 

and to help artists retrieve their works from unorganized stacks of 

paintings held in a warehouse. See Artists Hunt for their Works 

Rescued from Bankruptcy Firm, Boston Herald, Aug. 20, 2003, at 58. 

Following these events, "a working group convened, including members 

from Volunteer Lawyers for the Arts of Massachusetts (VLA), the 

Artists Foundation, and the Boston Art Dealers Association, to revise 

the statute. . . . [A Senator] took the revisions under advisement, 

and they were successfully enacted into law in November 2006." 

Ulrich & Jamison, Muddled Waters: An Addendum on Consignment of Fine 

Art Law in Massachusetts, 37 J. Arts Mgt., L. & Soc'y 301, 302 (2008).

Upon passage of the bill by the Senate, and prior to being acted 

on by the Governor, Jim Grace, the executive director of VLA, who 

helped draft the amendments to G. L. c. 104A, stated that "[t]he main 

purpose of this statute is to protect the artists," and that "a lot 

of artists were harmed" because their work was not returned or they

did not receive appropriate payment after the closure of the Boston 

Corporate Art and Haley & Steele, Inc. galleries. Tougher Rules on 

Fine Art Consignment Now up to Governor, State House News Service, 

Oct. 31, 2006. See Adams v. Boston, 461 Mass. 602, 612 n.17 (2012) 

("We employ contemporaneous news accounts not as a source of 

legislative intent, but as a source of valuable context as to the 

public dialogue animating the statute's passage").

12 These amendments included a broader definition of "fine art"; 

a definition of "consignor" encompassing art collectors; provisions 

regulating the manner and timing of payments by consignee to 

consignor; and added confirmation that a trust relationship exists 

between a gallery and an artist. Compare G. L. c. 104A, as inserted 

by St. 1978, c. 286, with G. L. c. 104A, as amended by St. 2006, 

c. 353.
13

part of a recording system for consigned art work, and not as a 

prerequisite for a consignment.13

General Laws c. 104A protects consignors' interests in their 

art work by providing that consigned works of art are not the property 

of the consignee, but are rather held in trust for the consignor. 

See G. L. c. 104A, § 4. Like statutes in a number of other 

jurisdictions, G. L. c. 104A thereby "provide[s] a safe harbor for 

the artist against the claims of a dealer's creditors." R. E. Lerner 

& J. Bresler, Art Law: The Guide for Collectors, Investors, Dealers, 

and Artists 41 (3d ed. 2005). See Jay, A Picture Imperfect: The 

Rights of Art Consignor-Collectors When Their Art Dealer Files for 

Bankruptcy, 58 Duke L.J. 1859, 1875-1876 & n.111 (2009) (collecting 

statutes). The bankruptcy trustee's interpretation of G. L. 

c. 104A would deny this safe harbor to consignors who fail to deliver 

 

13 This interpretation is also consistent with the purpose of 

G. L. c. 104A, as initially enacted in 1978. See St. 1978, c. 286. 

Prior to the enactment of G. L. c. 104A, the Uniform Commercial Code 

(UCC), G. L. c. 106, applied to the consignment of art work, and 

afforded minimal protection to consignors of art work in the event 

that a consignee sought bankruptcy protection. See Ulrich, Muddled 

Waters: Consignment of Fine Art Law in Massachusetts, 35 J. Arts 

Mgt., L. & Soc'y 121, 123-124 (2005). Under the UCC, if a UCC 

financing statement is not filed upon consignment, then a consignor 

retains only an unsecured interest in the consigned item, see G. L. 

c. 106, § 9-319. Commentators have noted that many artists do not 

file UCC financing statements due to the "handshake culture" of the 

fine art market. See, e.g., Madigan, Orphaned Art Consignors: 

Confusion in the Courts and the UCC, 29 Cardozo Arts & Ent. L. J. 

753, 756-757 (2011); Jay, A Picture Imperfect: The Rights of Art 

Consignor-Collectors when their Art Dealer Files for Bankruptcy, 58 

Duke L.J. 1859, 1862-1863, 1890 (2009).
14

written statements; such an interpretation is inconsistent with the 

Legislature's intent to enhance protections for artists' interest 

in their consigned works in both the original and amended versions 

of G. L. c. 104A. Compare G. L. c. 104A, as inserted by St. 1978, 

c. 286, with G. L. c. 104A, as amended by St. 2006, c. 353.

General Laws c. 104A, § 2 (c), requires a consignee to keep a 

copy of the consignor's written statement of delivery, make a record 

of sale if the art work is sold, and make records available for review 

upon request of the consignor. General Laws c. 104A, § 4A (a), 

requires that a consignee maintain separate accounts for each 

consignor, and G. L. c. 104A, § 4A (b), requires that payment be made 

to the consignor within ninety days of the sale of an art work. 

Failure to make payment within ninety days renders the consignee 

liable for payment of interest, costs, and attorney's fees, and 

failure to make payment within 180 days entitles the consignor also 

to seek treble damages. See G. L. c. 104A, § 4A (b), (c). In the 

event of a closure of the consignee's business, G. L. c. 104A, 

§ 4A (f), requires a consignee to notify consignors, return works 

within ninety days, and maintain all records for four years.

The Legislature thus intended the requirement of a written 

statement of delivery in G. L. c. 104A, § 2 (b), to facilitate a 

recording system that enhances protections for consignors of art 

work, and not to create a barrier to such protection. The recording 
15

system and its protections are impeded if a consignor does not provide 

the consignee with identifying information about the art work, and 

the name of the artist and the owner of the art work, and as required 

by G. L. c. 104A, § 2 (b). That the consignor generate the written 

description of the art work makes sense because the consignor will 

know the information that is required to be included in the record, 

such as the work's title, dimensions, medium, and completion date, 

and the consignor has a significant interest in the record being made. 

By delivering a written statement that is then kept on record by the 

consignee, the consignor reduces the risk that art work will be 

misidentified, become untraceable, or, in the worst case, be 

forfeited.14 See G. L. c. 104A, § 4 (c) (consignor forfeits art work 

if in good faith consignee cannot locate consignor within one year 

after decision to return unsold work); G. L. c. 104A, § 4A (e) (if 

in good faith consignee cannot locate consignor, consignee shall not 

be liable for penalties for failure to make payment, and after four 

years from date of sale, consignor forfeits payment). A consignor 

who does not furnish a written statement of delivery thus jeopardizes 

the consignor's own interest in the art work, but nevertheless 

effects a valid consignment under G. L. c. 104A, § 2 (a), so long 

 

14 A consignor "is solely responsible for keeping his contact 

information current with the consignee," including name, mailing 

address, telephone number, facsimile transmission number, and 

electronic mail address. G. L. c. 104A, § 4 (c).
16

as there is delivery of the art work and acceptance for the purpose 

of exhibition or sale on commission.

Conclusion. We answer the reported question, "No, a written 

statement of delivery is not a prerequisite for the formation of a 

consignment under G. L. c. 104A."

The Reporter of Decisions is directed to furnish attested copies 

of this opinion to the clerk of this court. The clerk in turn will 

transmit one copy, under the seal of the court, to the clerk of the 

United States Bankruptcy Court for the District of Massachusetts, 

as the answer to the question certified, and will also transmit a 

copy to each party.