Your lawyerPaul W.L. Russell, LL.M.
Paul Russell is a lawyer for international and national businesses, art dealers, museums, and affluent individuals. He specializes in corporate governance, contracts and corporate litigation. He has been a lawyer at Russell since 1976.
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Rijksmuseum Twenthe pays into a fake bank account. What are the options?
Those who do not pay close attention in international transfer run the risk of the money ending up in a fake account. The retrieval of an incorrect transfer is often difficult. Moreover, in that event the money has been paid but the invoice is still open and then money will still have to be paid. This happened to the Rijksmuseum Twenthe when buying a painting by John Constable. How could this happen and what are the options for the museum?
Purchase of a Constable
March 2018: At the TEFAF in Maastricht, a painting by John Constable: A View of Hampstead Heath: Child’s Hill. Harrow in the Distance (1824) is displayed in a stand of the renowned London art dealer Dickinson. Dickinson has the painting on consignment from the owner. Arnoud Odding, the director of the Rijksmuseum Twenthe, sees the work of art and immediately knows that he wants to add it to his already beautiful collection. He gets the painting for research and decides to buy it. After negotiations, the price is set at EUR 2.9 million. The Rembrandt Association makes a contribution and the rest of the amount is covered by commitments of the Mondriaan Fund and the National Acquisition Fund. The museum pays EUR 2.66 million into a bank account in Hong Kong and deems itself to be the proud owner of the only Constable in a public collection in the Netherlands.
Payment into fake bank account
And then things went wrong. The international money transfer was not received. The bank account the museum paid the money into did not belong to Dickinson but to cybercriminals. They had hacked the correspondence between the museum and started to e-mail the museum on behalf of Dickinson. At the last moment, they indicated that the amount should be transferred to a different bank account in Hong Kong.
Who is responsible for the transfer to the wrong account?
Quite understandably, Dickinson claims that the purchase price has to be paid into the correct bank account. The museum refuses to do so and also refuses to return the painting. After all, it has already paid. And it was Dickinson’s fault the money had been paid into the wrong account, so the museum argues. According to internal investigations, the museum’s cybersecurity was up to date but the art dealer’s was not. Moreover, the art dealer did not warn the museum that e-mails had been sent on their behalf which they had not sent themselves. Dickinson state, however, that their cybersecurity was up to date and that they could hardly warn of e-mails they did not know existed. The museum should have been more careful before transferring such a large sum of money.
The court in London shared Dickinson’s opinion and rejected the museum’s claims. The court did, however, leave open the possibility that the museum might be entitled to compensation on other grounds. However, right now Dickinson has the best papers to win the dispute.
Could this have been prevented?
Better cybersecurity would certainly have helped. A test carried out by the FD shows that both parties’ cybersecurity had not been entirely up to date. It would have been a better option for the museum to verify the bank account number with the seller by phone. Though the art market in Asia is growing fast, a bank account in Hong Kong is less obvious for a British art gallery. It is for a reason that double verification is now mandatory for everyday banking transactions.
How to proceed now?
The Rijksmuseum Twenthe still expects to be able to keep the Constable. However, as things are now, this will only happen if it transfers the purchase price again and into the correct bank account. The museum does however hold a trump card. It is already in possession of the painting and will keep it as long as the proceedings last.
And the museum is likely to have another problem in the event the painting has to be returned. The financiers will then not see a painting for the money they have paid and can hold the museum liable for this. In a first reaction minister Van Engelshoven, who is responsible for the national museums and the National Acquisition Fund for museums, does not go deeply into this issue. It is not proper, however, that she leaves open the possibility that Dickinson did receive the money. That is certainly not the case.
And then there is Brexit. After the transition period, which runs until 31 December 2020, it will become more difficult to enforce British judgments in the Netherlands. However, they remain binding and in the event of a return order, the Constable will then have to return to London.
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