How do you protect yourself against false art?
The Beltracchi case is perhaps one of the biggest art fraud trials in the world. The German painter and forger Wolfgang Beltracchi had been producing paintings in the styles of Max Ernst, Heinrich Campendonk, Max Pechstein and Kees van Dongen since the 1970s. Beltracchi invented two art collections, which were supposedly made up of paintings that were thought to have been lost. As far as is known, he caused around 40 million euros worth of damage. The Beltracchi trial shows in an almost amusing way the sensitivity of the international art trade; a far-reaching opaque market. The question is: how can you protect yourself against forged art?
Cases of art fraudsters are also known in the Netherlands. The Arnhem-Leeuwarden Court of Appeal ruled on such a case in 2015 (ECLI:NL:GHARL:2015:2108). This case concerned the following: after the purchase of two sculptures by the French artist Edgar Degas and the Swedish artist Anders Zorn, the sculptures turned out to be forgeries. The buyer claimed repayment of the purchase price. He based his claim on the fact that the sculptures were not in accordance with the sales contract and therefore claimed that he was entitled to dissolve this contract on the basis of non-conformity. Both the seller and the auction house refused to rescind the sale. The court ruled in first instance that dissolution of the purchase agreement for the Degas sculpture was legally valid and that the purchase price had to be repaid. On appeal, the appellant contested the granting of the claim for repayment. In its final decision, the Court of Appeal upheld the dissolution of the purchase agreement on the grounds of non-conformity. In the opinion of the Court of Appeal, the buyer was entitled to expect that the sculpture purchased was a genuine work by Degas. When it turned out that the purchased sculpture was a fake, this meant that the delivered work was not in accordance with the contract. On that basis the buyer was entitled to dissolve the purchase agreement with regard to this sculpture and to claim repayment of the purchase price.
In fact, three components can be extracted from this case that are of great importance in an art purchase: the buyer's obligation to investigate and complain, whether it concerns a reputable auction house and whether there is a so-called provenance, the history of the work's origin.
Buyer's duty of investigation and complaint
The buyer has a so-called obligation to investigate and complain in the given circumstances, which can reasonably be expected of him. If applicable, he must notify the seller of the defect within a reasonable period of time after he has discovered that the delivered item does not comply with the agreement. The qualification of the term "in due time" depends on the circumstances of the case, whereby important are: the observability of the defect, the way in which the defect comes to light and the expertise of the buyer.
In the above-mentioned case, it becomes clear that the defect was not obvious and that an expert examination was necessary. The buyer had an investigation carried out into the authenticity of the works. He also contacted the seller after having discovered the defect.
Provenance and renowned auction house
The Court shares the buyer's view that the description of the sculptures in the sales brochure gives the impression that these are authentic works by the artists mentioned. According to the auction conditions, this means: "In our opinion a work by the artist". The general reservation at the beginning of this provision ("Any statement as to the authorship, attribution, origin, date, age, provenance and condition is a statement of opinion and is not to be taken as a statement of fact") does not detract from the expectation of authenticity that can be derived from the chosen description.
It is essential to note that the brochure accompanying the works of art in question did not mention a provenance, i.e. the history of the work's origin. In this case, the buyer explicitly asked for a provenance for these sculptures. This suggests that he realised the importance of this. The absence of a provenance should be regarded as a reservation with regard to authenticity.
In addition, it is important that the auction house is a reputable auction house, and therefore its statements about a work on offer should be accorded due value by a potential buyer.
Conclusion
In conclusion, it can be deduced from the court's ruling that, in the case of an art purchase, particular caution must be exercised with regard to the obligation to investigate and complain, whether there is a history of the artwork's provenance, and whether the auction house is reputable. The Beltracchi case makes it clear how opaque the international art trade is and points to the need for prudence in an art purchase.
