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By: Paul Russell, Esq.
Russell Advocaten B.V.
Amsterdam, Netherlands

How can you prevent, as an art seller, that you will be held liable when a person who acts on your behalf gives incorrect information on a work of art?

In a case the Arnhem Court of Appeal has recently decided on, an art dealer had commissioned an auction house to auction 71 works of art, including a sculpture by the French artist Edgar Degas. The sculpture by Degas was not sold during the auction but after the auction, when a private art collector - a great fan of the Degas oeuvre, as he said himself – bought the sculpture. The buyer requested the auction house whether “provenance” was available with regard to the sculpture by Degas, the answer of the auction house was positive and the buyer was told that he would receive it later. However, the buyer never received the provenance and the sculpture turned out to be a fake.

The court decided that the vendor, the selling art dealer, had to pay back the total purchase price to the buyer. The buyer was to assume, according to the Court, that he had purchased a genuine Degas. The notification by the auction house that sufficient provenance was available was to be considered as a notification by the selling art dealer, as, in this situation, the auction house acted as a representative of this art dealer. The fact that the selling art dealer had informed the auction house that no (sufficient) provenance was available does not make a difference. The art dealer is thus held accountable for the information the auction house provided to the buyer, even if this information is unjustified and opposed to the information the selling art dealer provided to the auction house.

The same decision of the Court of Appeal shows that, apart from the selling art dealer, the buyer of art also bears responsibility for his or her purchase. The very same private art collector had purchased another sculpture from the same auction house, which, according to the auction catalogue, was attributed to the Swedish artist Anders Zorn. This sculpture turned out to be a fake as well. However, the art collector had not inquired about the provenance regarding the Zorn when buying the sculpture. Therefore, the court decided that the art dealer could not necessarily expect that this sculpture was an authentic object by the artist in question. The art dealer does not have to repay the purchase price of this false sculpture to the buyer.

Actions

  • When you buy art, check whether provenance information is available.
  • Give detailed instructions if a third party sells a work of art on your behalf.

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