Wednesday 29 January 2014

Even Though There is no Warranty of Authenticity, Buyer Still Entitled to Refund

There is an interesting post on the Oostwaard Advocaten legal blog ('No warranty of authenticity, buyer nevertheless gets a refund', Versturen 27 January 2014), and I think it has some application to the current no-questions-asked market in dugup antiquities. A Dutch collector bought four bronze sculptures some signed which were reportedly represented as the work of Rodin and Giacometti by the reputable gallery ("European Fine Art") selling them. When experts later labelled the sculptures as mere copies the collector demanded his money back. The gallery refused because they insist that they had "not warranted authenticity" (an old eBay seller get-out). The matter came before the Court of Appeals of Arnhem-Leeuwarden, which had to decide whether an error had been committed by the seller or buyer and thus "whether seller or buyer should bear the risk of the incorrect attribution". The seller argued that this was a case of caveat emptor, the buyer had got the sculptures at a price which was "significantly lower than the market value of similar bronzes of which the authenticity is a certainty". The final judgement of the Appellate Court is of interest with regard to the current state of the antiquities trade, with its risk of buying masked illicit and fake items. It was decided that it was the seller who should have observed greater level of care, the gallery had not
"made a (sufficiently clear) proviso that the sold sculptures might not be authentic [...] [and] had failed to disclose the reasons to doubt the authenticity. Given the seller's knowledge of the provenance of the sculptures, the seller should have known that there was a significant chance that the sculptures were not "the real deal". In short, seller should have provided more clarity on the level of certainty of the authenticity. [...] Whether the seller issued a warranty of authenticity is irrelevant: he should have observed more clarity and transparency.

After all, getting reliable, informed and accurate information about the object is one of the reasons one patronises reputable vendors. The sale (approximately 180.000 euro in total) was anulled by the Appellate Court which obliged the gallery to refund the purchase price.

Unlike certain other blogs of the genre, the Oostwaard Advocaten give  collectors sound advice. They note that the case illustrates the importance of clarity and disclosure in art sales transactions very well. The seller is obliged to make a sufficiently explicit proviso that items like this might not be authentic:  
When in doubt, selling galleries are well advised to disclose the risk of non-authenticity (and to adequately record that disclosure). Buyers of art can take heed as well: it took this collector six years to learn that he was entitled to a refund. An important disputed fact was whether the seller had made firm statements on the authenticity of the sculptures. From witness testimonies it became apparent that this particular collector felt it was generally "not done" to outright inquire about authenticity with a professional seller. In the next art sales transaction, as this case about the sculptures shows, buyers may want to consider not shying away from the (important) questions: "is it genuine" and "how do you know it's genuine"? And, better yet, getting something on paper to this end. 
What about adding "and of licit origin" to whether it is fake or not?

Antiquity dealers might be interested in the link the Kunst und Recht blog gives to the original judgement (in Dutch)


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