Why you don't want to be an auctioneer in France
April 18 2013
Picture: Art@Law
The Art@Law website brings us news of an important case in France. The case revolves around the above sculpture, which in 1987 was bought as a 'Rodin' at Tajan auctioneers in Paris. When the owner tried to sell it in 2006, again through Tajan, they told him it wasn't in fact by Rodin, but a later cast. So the owner sued Tajan, and in his favour the Paris Court of Appeal:
[...] held that an auctioneer was strictly liable to the buyer of an artwork if he described it as authentic when it was not. Strict liability means that the auctioneer is liable irrespective of whether he was negligent in cataloguing the artwork. He is liable if he gets it wrong.
If I was a French auction house, I'd be getting very sweaty right now. Imagine the possible liabilities that are on the horizon, given that attributions can change over time, often at the unreasonable whim of a specialist who doesn't know what they're talking about. It's one thing to be sued if you casually decided something was by Rodin, didn't check with the Rodin scholars, and catalogued it as Rodin in full. But as most auction houses are generalists, it's quite possible that they consulted the Rodin scholars of the day, and were assured that the piece was indeed by Rodin. In which case, you might argue that they were perfectly entitled to sell it as a Rodin.
In sculpture cases like the one above, advances in scientific analysis mean it's easier to tell an original cast from a later one. But the case is even more vague with attributions of period oil paintings. Let's imagine that in the 1980s you were an auctioneer in Paris who sold a picture as by Rembrandt, an artist whose oeuvre famously increases and decreases with each successive generation of scholars. You may have acted with all the diligence in the world, and had the backing of all the Rembrandt scholars of the day. Fast forward to 2013, however, and suddenly the Rembrandt Research Project is not so sure. That's one big bill...
In the UK, however, the situation is very different. Says Art@Law:
The English Courts approach these matters very differently. First, the attribution of an artwork to a particular artist or period is typically held a matter of opinion. Secondly, the English Courts are unlikely to attribute contractual force to an opinion. Thirdly, in order to establish negligence, the claimant must show that the defendant owed him/her a duty of care; that is rarely the case in a relationship between buyer and seller. For these and other reasons, it is generally more difficult to persuade a court to find against an auctioneer or expert in England than it is in France.
Still, the French Court of Appeal decision means (I suppose) that France might suddenly look like a good place to buy art - after all, you have an indefinate guarantee of authenticity enforced by the state. You may struggle to find someone to sell you anything, though...
