Art and Law: Warranties by art experts

Publication date: 2 February 2017
Can art buyers simply rely on the opinion of an art expert? And is the art expert liable if his or her opinion turns out to be wrong, or if the owner of the work of art protests against the opinion?

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During the past few years, the art world was startled by a number of different forgery cases. Think, for instance, of the fake Frans Hals painting, forger Wolfgang Beltracchi, and the Knoedler-case.

Authenticity

Each potential buyer is therefore well-advised to perform research concerning the authenticity of the work of art he intends to buy. The authenticity of a work of art relates to whether the work of art has the qualities expected, such as the attribution to a certain artist, the period during which the work of art was made, and the materials used. In other words, is the work of art “authentic” or is it, for instance, a fake?

Provenance

In provenance research it is examined who the former owners of the work of art were in order to exclude the possibility that it was stolen or looted.

If the buyer does not perform research as to the authenticity and provenance of the work of art, the chance is that he will have to pay for the consequences if the work of art does not meet the desires and expectations after the purchase.

Role of the expert

To protect himself against these risks and to obtain more security as to the authenticity and the provenance of a work of art, the potential buyer or seller will often involve an art expert or adviser.

An art expert can, for instance, make an appraisal of the work of art, give an opinion or advice, or even submit a certificate of authenticity. Especially, if an appraisal or certificate was issued by the leading expert regarding a respective period or artist, the buyer is likely to attach critical value to it – but rightly so?

Can wrong attribution be recovered from seller or expert?

If the seller involves an expert, the confirmation of the art expert that the work of art in question is authentic will often be understood as a warranty by the buyer. If the work of art turns out to be a fake after the purchase, the buyer will easily be entitled to withdraw from the purchase and to reclaim the purchase price form the seller.

However, if the expert was involved by the buyer, and this expert was wrong, it will be more difficult to appeal to the seller to reimburse the purchase price. If this does not work, the buyer is likely to address his “own” expert to try and recover the damage.

When are experts liable?

Attributing works of art is not an exact science but the result of weighing different elements, such as, for instance, provenance (who were the former owners?), style, technique, colours and materials used, signature and the depiction. In addition, the assessment is often intuitive to a certain degree, which means different experts can make different assessments. New research techniques may also lead to a different attribution. Therefore, an art expert is not always liable if he gives an opinion that is considered to be wrong by other experts.

Negligence

An art expert will often only be liable when it turns out that he has acted negligently. If he has thoroughly reviewed the significant aspects of the work of art, phrases his opinion clearly, justifies it and proves that he is open for other arguments, it will be difficult for a disappointed buyer to recover the damage from the art expert because of an incorrect advice or certificate.

Oeuvre catalogue

The latter applies even more so if the art expert has given unsolicited advice on the work of art, for instance when compiling an oeuvre catalogue, also referred to as a catalogue raisonné. Of course, the compiler of an oeuvre catalogue must work carefully but he will rarely be ordered to compensate the damage of the buyer of a work of art that was wrongly attributed.

Limiting liability

Art experts can limit or even exclude their liability by arranging so in a sound written agreement, the corresponding general conditions, or clear disclaimers under written opinions given.

Conclusion

Art buyers therefore cannot always rely on the opinion of their “own” art expert. If a work of art turns out to be a fake but the contrary opinion by the art expert was established with care, the buyer of a fake work of art might end up empty-handed. Making sound written agreements with the seller on what will happen if a work of art is not what the buyer had expected can give solace for instance.

Art experts face risks as well. As there are frequently significant sums involved in the art world, art experts might have to face major problems if they are confronted with a claim because their opinion is considered incorrect by other art experts in retrospect. But even if there’s nothing wrong with the opinion by the art expert problems might occur: What if the owner of a work of art does not agree with the opinion by the art expert because the work of art is worth considerably less and requests the art expert to modify his opinion? These kinds of risks can also be prevented to a large extent by written contracts, general conditions, and disclaimers.

What to do?

Would you like to buy or sell a work of art? Have you bought a work of art but are not satisfied with it? Or are you, as an art expert, confronted with a claim because of an opinion you gave? We will be happy to draft good contracts for you that will prevent hassles in the future. We will also be happy to advise you on how you can limit the risks in buying art and art consultation as far as possible.

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