Authenticity in Art and Law: A Question of Attribution or Authorization?

The Drake case is one of a whole list for which the English courts have ruled against buyers. Likewise the courts have been reluctant to find other remedies related to contracts, including mistake (that both parties were mutually mistaken as to the subject matter of the contract) and misrepresentation (that representations made by the seller induced the buyer to enter into the contract). In the case of Leaf v. International Galleries (1950)(17), for example, a leading judge, Lord Denning, said that there had been no mistake by the seller or the buyer as to the “subject matter” in a legal sense of a painting wrongly attributed to John Constable because the buyer still had in his possession a visually appealing picture of Salisbury Cathedral! In Harlingdon and Leincester Galleries v. Christopher Hull Fine Art (1989)(18), the wrongful attribution of a painting by the seller to Gabriele Münter was held by the court not to be a misrepresentation (or a sale by description) because the buyer (also a dealer) had not relied upon the attribution at the time of purchase.

The English courts have been more willing to find contractual liability on the part of sellers when this has been expressly agreed upon in the sale contract. In De Balkany v. Christie Manson & Woods (1997)(19), the court found that the auctioneer, Christie’s, was contractually liable to the buyer of a forged painting wrongly described in the catalogue as being by Egon Schiele under a specific condition in its terms and conditions that it would refund the purchase price in the case of a deliberate forgery. The court found that the underlying painting was by Schiele but had been overpainted by another artist, who had added fraudulently Schiele’s initials to it. Christie’s failed to establish that the painting was not a forgery within its terms and conditions.

It is possible that when valuing artworks, experts (particularly auctioneers) may assume professional duties of care. In Luxmoore May v. Messenger (1989)(20), an English court held that an auction house valuing specific artworks on behalf of a seller owed a professional duty of care to the seller to exercise reasonable skill and care in the valuation. Here the auctioneer had failed to identify two paintings of foxhounds as authored by the well-known animal painter George Stubbs. However, as a provincial auction house it was not held liable for its failure since the applicable standard of care is lower than for a leading auctioneer such as Christie’s or Sotheby’s. Conversely an auction house may owe a duty of care to the buyer of an artwork or valuable artefact at auction. In Taylor v. Thomson & Christie’s (2004)(21), the Court of Appeal held that Christie’s owed a duty of care to exercise reasonable skill and care to a buyer with whom they had entered into a special relationship to provide an accurate valuation when dating an urn (it was likely to be from the nineteenth rather than the eighteenth century, and not from the Louis XV period, as described). On the facts, the court held that Christie’s had discharged its duty; however, it was left open as to whether auction houses owed a general duty of care to buyers at auction when providing attributions.

The slippery relationship between the authenticity of the artwork and its description illustrates how difficult it is for buyers, and sometimes sellers, to rely upon the law in the art market. Much turns on the specific circumstances of the transaction (including the identity of the parties – whether both are art experts or art dealers for example) and particularly what was written and said at the time of the sale.

Whether issued by an artist or an expert third party, the certificate of authenticity would seem to offer collectors greater certainty, but this hinges on precisely what is stated. If a certificate expressly provides an attribution, then it is more likely to amount to a legally binding promise or warranty, particularly if the artist signs it. Yet even with a certificate a seller might avoid liability if they can demonstrate that they had disclosed sufficient information to the buyer prior to the sale to cast doubt on the warranty provided. See the US case of Rogarth v. Siebermann (1997)(US)(22), in which a buyer was unable to rescind the sale of a painting attributed to Francis Bacon in the bill of sale because of prior disclosure the seller had made to the buyer about the work.
The current lack of certainty in the art market about the contractual effect of descriptions of authenticity suggests that this is in urgent need of legal reform. Whether or not legislators and judges are prepared to take these steps to offer greater certainty and wider remedies to parties (particularly buyers) remains to be seen but the standardised use of certificates of authenticity in the art market (particularly when issued by artists) provides a potentially useful means of achieving this.
It is important to remember that a party who deliberately certifies a fake as being an authentic artwork will be contractually, as well as criminally, liable for fraudulent misrepresentation. Thus it transpired in 2009 that Pontus Hulten (23), former director of the Moderna Museet, in Stockholm, supplied fabricated Brillo Boxes attributed to Andy Warhol and backdated to 1968, along with Andy Warhol Authentication Board certificates of authenticity to assert the copies as originals. Had the fraud been discovered before his death, Hulten would potentially have been exposed to contractual claims from the dealers he sold the copies to, as well as to criminal prosecution.

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