Art and law: If art is not what it seems

What can you do if the work of art you purchased differs substantially from what you thought to have purchased?

You have bought a painting under the impression that it was made by a certain master, however, research shows that this is not the case. The painting is a forgery and worth considerably less than you expected. What can you do if the work of art you purchased differs substantially from what you thought to have purchased?

Error

Error is deemed to exist if:

1. An agreement is concluded because of misrepresentation by one or both parties, for instance if a party assumes to sell or purchase a work of art by a famous master, whereas it is by an apprentice, and
2. the agreement would not have been concluded if the information had been fairly disclosed or under different conditions.

The buyer may invoke error successfully if the following conditions are met:

• The wrong idea the buyer got at the sale was due to the information of the seller. For instance, if the seller assures several times that a forged sculpture is an authentic sculpture by Giacometti.
• The seller knew or should have known that the disclosed information was essential for the buyer.
• The error should not remain for the account of the buyer, for instance, because he is a consumer and, unlike the seller, not an art expert.
• The error may not regard a future circumstance, such as an investigation with regard to the authenticity of a work of art using techniques that did not exist at the time of the purchase.

If you want to invoke error, you will have to prove that the lacking quality, such as the name and reputation of the artist, was an important factor for your decision to buy the painting. Therefore, it is important to include in the purchase contract prior to the purchase what you intend to buy, such as the name of the artist.

Annulment of the agreement

In the event of error, the agreement can be annulled. Annulment does apply retroactively, that means the agreement is considered to have never existed. After the annulment the sum of money paid has to be given back and the work of art must be returned to the seller.

Would you like to learn more about error regarding art purchases? Or do you have any other questions about art and law? Please contact Russell Advocaten: