Friday, 6 September 2019

Canadian Court’s Decision on Provenance a “Big Warning to Art Dealers”

“If the [art] buyer receives a provenance that is not accurate, they will be able to obtain legal remedy,” Leah Sandals, 'Court’s New Morrisseau Forgery Decision a “Big Warning to Art Dealers”...' Canadian Art 5th September 2019
An Ontario Court of Appeal decision, released September 3, ruled that Maslak-McLeod Gallery of Toronto had breached a contract with art collector Kevin Hearn when it sold him a Norval Morrisseau painting with unreliable—and likely false—provenance documents. Though the decision did not say the painting Hearn purchased was an outright forgery or fake, the appeal judges did say it mattered that the provenance was false. [...] the Gallery’s provision of a valid provenance statement was a term of the purchase and a warranty, not mere puffery,” the new appeal decision states. [...]
“I would describe this decision as a big warning to art dealers,” says Jonathan Sommer, the lawyer who represented Hearn in court at the initial trial. (Matt Fleming and Chloe Snider of Dentons LLP represented Hearn during the appeal.) “What the court of appeal has said is that accurate provenance is one of those things that for the art world is extremely important.” To be clear, Sommer adds, “If the potential purchaser of a painting comes in and asks for provenance,” Sommer adds, “you better make sure it’s right or you could end up like McLeod did here, being liable for civil fraud—which will not only cost you your money but cost you your reputation too.” Alternatively, if complete provenance or guarantees of authenticity are not available, art dealers must be clear about that, using language such as “attributed to” and also being willing to reduce prices significantly. At the same time, Sommer is clear about art buyers’ need to be vigilant about what’s on offer: “I will always advise people to get dealers to put their money where their mouth is, with full provenance statements and guarantees of authenticity—or no sale.”

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