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Velislav Kovatchev

Student ID: 6098035


Number of words: 5150
Tutor: Vanessa Tuensmeyer
Tutorial: Mondays from 08:30 until 10:30
Course Coordinator: Dr. Hildegard Schneider

The Fake and The Furious


The International Art Market and its Archenemy:

Why is authenticity important and how is the problem of inauthenticity


remedied under French and New York law?

Woe to you! You thieves and imitators of other peoples


labor and talents. - Albrecht Drer

Table of Contents
Introduction 1

Historic Overview of the Art Market 2

Aspects of the art market 3


Internationality of the Trade 3
Types of Intermediaries 4
Supply and Demand in the Art Market 5
Estimating the Price of Art 6

What is authenticity? 7
Definition 7
Case Law on Authenticity of Art 8
The Criteria of Authenticity under French Law 90
The Criteria of Authenticity under New York Law 100

Remedies for Purchasing Inauthentic Artwork 111


Remedies under French Law 111
French Case Law on Remedying Inauthentic Purchases 122
Remedies under New York Law 123
New York Case Law on Remedying Inauthentic Purchases 144

Conclusion 145

Bibliography 156

Introduction
Purchasing fakes is particularly problematic in the art world due to the fact that the value and price of an
artwork are embedded in its authenticity. For many dedicated collectors, as well as laypeople, a fake piece
which perfectly resembles the original is worthless, just because the notion of authentic work is missing.
The importance of the genuineness concept makes the art trade economy substantially different from
many other trades.

1
The authenticity in the art market is of great importance, but at the same time it is a very controversial
topic. The main focus of this paper is on the problems of questionable authenticity in the market for fine
arts. In addition, the issue of how can the law remedy the purchase of fake art will be addressed.

Firstly, a brief overview of the history of the market will introduce the reader to the world of art trading.
Consequently, the modern art market and its functionality will be assessed. Next, attention will be paid to
defining the concept of authenticity under the French and New York legal systems. In the last part of the
paper the focus will be on the possible remedies under both systems in case of a purchase of an
inauthentic artwork.

The reason for the choice of France is because it is one of the largest exporters of art and the USA is one
of the most active importers of art in the world.1 Additionally, New York is acknowledged as the capital
of the art market of the Western Hemisphere and is also a home of a large number of the most prominent
and reputable auction houses, galleries and museums.2

Historic Overview of the Art Market


Although arguably the first fine art auction is Rembrandts sale of his own art collection in Amsterdam in
1657 to satisfy his ever increasing debts, it is widely considered that auctions, as we know them today,
started in the middle of the eighteenth century in England. During that period in history, there was a need
to respond to the huge rise in collecting and the flourishing of the great country homes and libraries which
became the symbol of civilization of the newly wealthy upper classes. It was this demand and possible
new business opportunity that gave birth to the two principle auctioneers in London, Christies and
Sothebys.3 It can be said that this era marks the beginning of the art market.

Even in the twenty first century, auctions remain a distinctly effective method of buying and selling of all
kinds of art pieces. The room of sale can still be considered as the prime place to determine fair market
value of a work of art and provides the best barometer of supply and demand within every collecting.4

1
Iain Robertson, Understanding International Art Markets and Management (Routledge 2005) p. 16
2
Patty Gerstenblith, Art, Cultural Heritage, and the Law: Cases and Materials (Carolina Academic Press 2004) p.
363
3
C. Hugh Hildesley, The Complete Guide to Buying and Selling at Auction (KS Giniger Company, Inc 1997) p. 11-
12
4
ibid

2
In the 1930s, dealers could pick up prime pieces at distress prices, however, there were few buyers. The
war years the came a bit later proved to be even worst. Recovery was slow, apart from a brief but brisk
trade in artworks looted by American soldiers from continental Europe. In the decades right after the
Second World War, tastes were less pretentious, the distribution of income not so widely distorted, the tax
system more progressive, and financial markets better regulated. Although things began to improve in the
1960s, the significant changes that made the art market a strong economy were in the next decade.5

In recent years, the global market for fine and decorative arts has experienced a tremendous expansion
and has gained a large amount of popular and scholarly attention. A market previously dominated by two
countries, the United Kingdom and the United States, now has a new leader in the face of China. The art
market of the Asian country managed to surpass those of the UK and US which proves that the
international market is growing and evolving with each passing year.6

Buying and selling art pieces has become an increasingly important part of the financial world.
Nowadays, most works of art are seen as an investment, as well as sources of cultural and aesthetic
pleasure. However, similarly to other commercial transactions, the trade in art is subject to the problems
of deception and misrepresentation.7

Aspects of the art market

Internationality of the Trade


It is reasonable to recognize the development of the art market as simply the development of a trade in a
specific product. This idea conforms to the theories of international free trade coined by Adam Smith in
the late 18th century.8

An archetypal example of the benefits of free trade, which had a direct and strong effect on the art world
and the art market, was the opening of Japan in 1858 under American pressure. This exposure to a

5
R.T. Naylor, 'The Underworld of Art' (2008) vol.50(4) Crime, Law and Social Change p. 263-291
<http://link.springer.com/article/10.1007/s10611-008-9140-6#Fn13> accessed on 26.03.2017
6
Tom McNulty, Art Market Research: A Guide to Methods and Sources (2nd edn, McFarland and Company, Inc.,
Publishers 2014) p. 5
7
Gerstenblith (n 2) p. 301
8
James Goodwin, The International Art Markets: The Essential Guide for Collectors and Investors (Kogan Page
Limited 2008) p. 4

3
different culture for both nations led to a new style known as Japonisme. Additionally, with the growth of
the Japanese economy, many collectors started buying western art, thus expanding the international art
market.9

For the majority of the new buyers the art market can be a very discouraging place, and often it does not
follow the rules of other more traditional trading areas.10 Looking at the majority of the countries in the
world that have developed an individual artistic culture and style, it can be reasoned that the works of art
grew out of a combination of favourable conditions such as a well-established civilization, a feeling of
liberalism (or, at worst, a more aware and enlightened despotism) and a sense of luxury which came from
the wealth creation.11

Types of Intermediaries
It is a well established fact that there are two levels in the art market which are primary and secondary
trade. The former deals with artworks which show up on the market for the very first time. Since most of
the art on this level is in many cases less known, dealers and buyers work on low margins and with less
stock. Nonetheless, there is also the possibility of a high rewards for successful artists and their
intermediaries, which means that more and more people are attracted to the primary level of the art
market annually.12

An example of the primary level of the art market are the art fairs which could be a good place for dealers
and other types of buyers to purchase art from an unknown artist with the aim of presenting it to the
general public and possibly increasing the price of future artworks with a similar style. In addition, these
fairs seek to attract both local collectors and international buyers who attend auctions and are usually
lured by the same sense of opportunity, competition and public spending. The most notable annual art
fairs are TEFAF, Art Basel and Art Basel Miami Beach and the Art Dealers Association of America art
fair in New York.13

The secondary level of the art market is composed of auction houses and art dealers. Both of these
intermediaries mainly operate on an international scale and trade with works by well known and esteemed
artists and with a large amount of stock and cash. The alteration of the secondary art market is mainly due

9
ibid
10
ibid p. 1
11
ibid p. 4
12
ibid p. 6
13
Michael Findley, The Value of Art (Prestel 2012) p. 36

4
to three particular auction houses: Sothebys (founded in 1744), Christies (founded in 1766), and
Bonhams (founded in 1793). These three companies together hold almost a third-share in the global
auction market.14

Another interesting part of how the intermediaries work is the patronage system, whereby a natural or
legal person supports the artist entirely for a period, during which a contract is drafted that obliges the
artist to produce specific works or a specific number of works. This is a rather controversial aspect, not
only because it limits the artists creativity and potential, but also because it creates numerous legal
relations which can easily lead to breaches and lawsuits.15

Supply and Demand in the Art Market


Similar to all other markets and based on the ideas of how an economy works, the variation in prices for
works of art is mainly dependant on the extent to which the art pieces are available and to the degree
which the public wants to purchase them. This proves to be a very challenging aspect of the art market
because on the one hand art objects are unique by their very nature and they are rarely available in more
than just one, while on the other the number of possible purchasers could be very small. Therefore,
determined collectors must buy not only when the they believe that the price is right, but when an
opportunity offers itself.16

In the secondary art market, supply mainly benefits from debt, divorce and death. It is considered that in
todays era of continuous financial instability, sales to meet tax bills provide auction houses with the
greatest flow of artworks. Turning to demand, the crucial factor is value and the relative value of money.
As household wealth increases, so do the acquisitions of all kinds of artworks, although usually only
when a certain threshold of wealth is reached.17

Additionally, economic growth and currency flows can have a tremendous effect on the sale of art. As an
example, after the appreciation of the Japanese yen in 1985, the Japanese buying power increased
significantly. By 1988, more than 50 per cent of the total worldwide art auction sales were to Japan.

14
Goodwin (n 8) p. 7-8
15
ibid p. 6
16
Goodwin (n 8) p. 11
17
ibid

5
Moreover, the quadrupling of the oil price since 2002 has made Dubai a prominent player on the art
market as well.18

Estimating the Price of Art


Although the market for artworks is inherently flawed, it is the only mechanism that can put a money tag
on the otherwise intangible value of art. Similarly to all other goods on the market, whenever an art piece
is bought, the buyer expects that it is worth the price. Factors such as time, taste, place and random
elements will always leave some part of the price unexplained because generally works of art have
distinctive qualities and the sale may have unique circumstances. Therefore, the price of an art piece can
never be accurately predicted before an auction.19 When the auction hammer falls, prices becomes
equated with value, and this is written into art history.20

The uncertainty factor in the pricing of art has tremendous impact on the international art trade. Since art
is mostly seen as an expression of emotions and feelings, many of the purchasers invest not only their
money, but also their passion, instinct and trust. This is where the idea of authenticity plays its major role.

Unlike some traditions of Chinese paintings in which copies have value to the degree to which they
maintain the spirit of the original, there is no degree of authenticity whatsoever when it comes to Western
works of art from the last two hundred years. An object is either deemed by the market to be right or
wrong, worth something or worth nothing.21

What is authenticity?

Definition
Defining the concept of authenticity when dealing with aesthetics can be a very daunting and uncertain
thing. Authenticity, similar to real, genuine and true, is a so-called dimension word, a term
whose meaning remains unclear until we know what dimension of its referent is being talked about.22

18
ibid
19
Goodwin (n 8) p. 12
20
Don Thompson, The $12 Million Stuffed Shark: The Curious Economics of Contemporary Art (Palgrave
Macmillan 2008) p. 178
21
Findley (n 13) p. 43
22
Denis Dutton, Authenticity in Art in The Oxford Handbook of Aesthetics (Oxford University Press,2003)
<http://www.denisdutton.com/authenticity.htm> accessed on 25.03.2017

6
A good example here would be the case of the Dutch painter Hans van Meegeren, who caused one of the
greatest sensations ever made by a forger of works of art. He developed a pristine technique of forgery of
the work of Jan Vermeer and adopted Vermeers style as his own. He took extracts and details from a
number of different originals and combined them in a single work, borrowing a gesture here, a pose there,
a colour harmony elsewhere - all from Vermeers life work which van Meegeren studied closely. The
forger was later arrested for selling an original Vermeer to the nazis. His forgeries were so convincing
that he had to paint a Vermeer type artwork to persuade his doubters.23 This case proves that a forged
painting may not be considered inauthentic in every situation. Van Meegerens forgery of Vermeers
work is unquestionable, however, his work can be seen as an authentic Hans van Meegeren.24

Moreover, the term authentic forms around two broad categories. The first is nominal authenticity
which is the correct identification of the origins, authorship or provenance of an art object. The second
one, expressive authenticity, is the objects character as an expression of an individuals or societys
values and beliefs.25

Labels, certificates of authenticity, lengthy documentation, and other claims do not in themselves
determine authenticity. Signatures are notoriously easy to manufacture or reproduce. An example is the
case of a Rembrandt monogram on a Portrait of Titus which was appraised for estate purposes in the early
1970s. The painting was donated to a museum and it was not only signed, but had all the documents and
appeared in all the major monographs on the artist as an authentic Rembrandt. However, after a
restoration procedure, it was found out that the painting was actually a fake from the nineteenth century
by a German art forger.26

According to James Goodwin, forgeries fall into three categories: deliberate fabrications; replicas,
reproductions and copies to deceive; and altered art. There is temptation to exaggerate attributions which
are dubious, and some of the best forgeries have been exhibited in galleries and museums as an authentic
work of art. The possible penalties for a forger are far less alarming when the potential profit could be in
the millions. Therefore, a Bill of sale could be the best preventive measure against being tricked into
buying a fake.27

23
Eileen Chanin, Collecting Art: Masterpieces, Markets, and Money (Craftsman House 1990) p. 117
24
Dutton (n 22) accessed on 25.03.2017
25
ibid
26
Hildesley (n 3) p.37-38
27
Goodwin (n 8) p. 11

7
Frank Arnau argues that it is not merely a question of distinguishing genuine from spurious but of
identifying, reliably and undoubtedly, the many intermediate categories. Some artist event copy their own
work for the sake of repetition. Imitations appear, together with part-originals and originals superimposed
on other originals. The lines of distinction became blurred, making the quest for a clear definition
impossible.28

Case Law on Authenticity of Art


One of the leading cases when it comes to problematic authenticity and its consequences is the Lagrange
v. Knoedler Gallery.29 The lawsuit was filed against the Knoedler Gallery, a very well-known New York
art gallery, in 2011. The Knoedler Gallery was established in 1846 by French dealers and had a great
reputation for dealing with very expensive artworks from famous artists. The claimant, Pierre Lagrange,
was a Belgian entrepreneur who had bought an untitled Jackson Pollock painting from the gallery for $17
million. When Christies and Sothebys rejected the art piece when Lagrange tried to auction it, he
initiated background checks on the authenticity. The results showed that the painting is fake and after
informing the gallery, Knoedler Gallery announced its closing after being operational for nearly 150
years. This case lead to a FBI investigation which found out that many of the artworks sold by the gallery
were fakes and created by forgers. Many other lawsuits were filed by former buyers following the scandal
that ensued.30

The case of Lagrange v. Knoedler Gallery demonstrates that trading with potential inauthentic artworks
can have a detrimental effect for a seller. It can result in the tarnishing of a well established reputation and
the loss of extraordinary amounts of money. Moreover, it can also cost a lot of money to the buyer and
have a bad effect on their reputation as well. The reality is that the concept of authenticity lies at the basis
of the art market and its infringement could lead irreversible consequences.

Another impactful case that demonstrates the many problems which come with establishing authenticity
in the art world is the Hahn v. Duveen.31 In this famous case, Joseph Duveen, an art dealer who was
responsible for the expansion of the market for Renaissance art in the United States, claimed that a

28
Frank Arnau, Three Thousand Years of Deception in Art and Antiques (Jonathan Cape 1961) p. 13
29
Lagrange v. Knoedler, 11-8757, U.S. District Court, Southern District of New York (Manhattan).
30
Leila Amineddoleh, 'Purchasing Art in a Market Full of Forgeries: Risks and Legal Remedies for Buyers', vol.22
International Journal of Cultural Property (2005) p. 419-
435<http://authenticationinart.org/pdf/literature/Amineddoleh-Leila-Purchasing-Art.pdf>accessed 26.03.2017
31
Hahn v. Duveen, 234 N.Y.S. 185 (Sup. Ct. 1929)

8
painting owned by Andr Hahn was fake. The artwork in question was allegedly done by Leonardo da
Vinci and Duveen claimed that the original was in the Louvre in Paris because there was there same
painting there with the same name.32 The claim by Joseph Duveen, given his reputation in the world of
fine art, made the sale of the painting owned by Hahn almost impossible and Hahn filed a lawsuit for the
damage done to her reputation. One of the main issues was that Duveen had not seen the painting in
person or even on a picture. Therefore, he acted only in his role as an art expert, relying on his so-called
sixth sense. The result of the case was a hung jury and a settlement between the parties, after a six year
legal battle. Judge Black harshly critiqued the art market by saying that an expert is no better than his
knowledge. His opinion is taken or rejected because he knows or does not know more than one who has
not studied a particular subject Because a man claims to be an expert, that does not make him one.33

The case of Hahn v. Duveen further demonstrates the numerous uncertainties surrounding the concept of
authenticity in the art market. Sometimes authenticity depends on the opinion of an expert which cannot
be objectively challenged. These opinions might seriously damage reputations and the possibility to sell
art. Additionally, some artworks such as the one in question in the the Hahn v. Duveen case might remain
unidentified as either real or fake, which complicates the notion of authenticity even more.

The Criteria of Authenticity under French Law


Under the French legal system, authenticity when dealing with art is established under the decret n81-
255 du 3 mars 1981 sur la repression des fraudes en matiere de transactions doeuvres dart et dobjets
de collection.34 In this document, the legislator has laid down the terminology, which serves as the
guideline to prove that a certain artwork is authentic.

One such term is the oeuvre par oeuvre de (work from...work by) which guarantees that the artist
mentioned is truly the author of the artwork. Next, the legislator uses sign estampill (signed
stamped) which has the same meaning as the previous expression, unless there are explicitly mentioned
reservations. Another term is the attribu (attributed to) which states that only serious presumptions
that the artwork is done by the mentioned author must exist. Additionally, atelier de (studio of) deals
with the fact that the artwork must be made in the studio of the artist or under his direction and

32
Gerstenblith (n 2) p. 373-374
33
Amineddoleh (n 30) accessed on 26.03.2017
34
Decret n81-255 du 3 mars 1981 sur la repression des fraudes en matiere de transactions doeuvres dart et
dobjets de collection at
<https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=LEGITEXT000006063458&dateTexte=20110909>
accessed on 27.03.2017

9
supervision. cole de (school of) refers to the notion that the artist could be a student of the artist (or
master) who is mentioned. Moreover, the art piece must be made while the artist is alive or less than fifty
years after he has died. Conclusively, poque, sicle (period century) are used to guarantee that
the artwork was made during the period and/or century which is sited. An example would be the Bronze
Renaissance. Things such as dans le got de (taste) and style do not guarantee that an artwork is
authentic.35

The Criteria of Authenticity under New York Law


The New York statute is the most comprehensive and specific art market statue.36 The instrument is
called the New York Arts and Cultural Affairs Law (2001). Section 13.01 deals with the express
warranties, which are a key part of proving authenticity. Article 1 of the section states that if an art
merchant sells an artwork to a buyer, who is not an art merchant himself, and issues a certificate of
authenticity, the certificate will be presumed to be a part of the basis of the deal and it shall create an
express warranty for the material facts stated as of the date of such sale or exchange.37

Furthermore, Article 2 of the New York Arts and Cultural Affairs Law (2001) states that due regards
shall be given the terminology used and the meaning accorded such terminology by the customs and the
usage of the trade at the time and in the locality where the sale or exchange took place.38

Section 13.01. continues with Article 3 where the language, which is to be used in a certificate of
authenticity, is defined. In subsection (a), the legislator establishes that the mentioning of the name of the
author of a certain work means that the work is done by said author, without any ambiguity. Furthermore,
according to subsection (b), when a work is attributed to a named author, this means that the work is of
the period of the author and it is attributed to him, but not with certainty by him.39 Next, subsection (c)
defines the notion that a work is of school of a named author as being a work of the period of the author
or by a student or close follower of the author, but not by the author himself.40

35
La stabilit juridique incertaine, <https://www.senat.fr/rap/r98-330/r98-33014.html> accessed on 27.03.2017
36
Gerstenblith (n 2) p. 363
37
New York Arts and Cultural Affairs Law, Section 13.01. Express warranties; <http://codes.findlaw.com/ny/arts-
and-cultural-affairs-law/aca-sect-13-01.html> accessed on 27.03.2017
38
ibid
39
ibid
40
ibid

10
Remedies for Purchasing Inauthentic Artwork

Remedies under French Law


One of the main differences between the approach to remedying wrong acquisition of fake art between
France and New York lays in the fact that the French legislator applies the subjective approach. The main
aspect of this approach is the meeting of the minds which is concerned with the actual, literal intentions
of the parties.41 Whenever parties have agreed according to this approach, Article 1134 of the French
Civil Code states that their agreements take the place of the law for the parties.

The doctrine of the autonomy of the will requires that the agreement which constitutes a contract should
have been freely made. Article 1109 of the Code civil states that there is no valid consent if the consent
has been given only by mistake, or [...] by fraud. Furthermore, one of the possible mistakes under French
contract law is erreur sur la substance which can also be seen under Article 1110 of the Code civil.42 The
error must relate to the very substance of the thing which is the object of the agreement. A mistake about
the authenticity of an artwork can easily qualify as an error of the very substance of the object of contract.
If a person wants to buy an art piece, he wants it to be genuine and the lack of authenticity often marks
the object as worthless.

Since both parties must agree on the same terms in order to enter a contract, if a party receives an
inauthentic artwork, but wanted and believed that it was in fact authentic, the party would be able to annul
the agreement under Articles 1110 and/or 1116 of the Civil code.

Article 1116 of the Code civil deals with fraud and it states that fraud is a cause of nullity of a contract
when one of the parties did not disclose a crucial element which could have changed the mind of the other
party. This must be intentional and illicit, because innocent misrepresentation has no legal consequences
in French law, except insofar as it may produce erreur.43 Therefore, a buyer could rely on Article 1116 to
annul the contract if they believe that the seller acted in a fraudulent way.

41
Wayne Barnes, 'The French Subjective Theory of Contract: Separating Rhetoric from Reality' (2008), vol. 83
Tulane Law Review
<http://www.heinonline.org/HOL/Page?public=false&handle=hein.journals/tulr83&page=359&collection=journals>
accessed 27.03.2017
42
Barry Nicholas, The French Law of Contract (2nd edn, Oxford University Press 1992) p. 83-84
43
ibid p. 100-101

11
Finally, Article 1382 of the French Civil code deals with torts and compensation of damage. It states that
a person is liable for the damage they caused and is obliged to compensate the victim, irrespective of what
the act which gave rise to the damage was. Following this, a person who suffers damage due to
purchasing an inauthentic artwork, can try to use Article 1382 in order to receive a compensation.

French Case Law on Remedying Inauthentic Purchases


One quintessential case under French law dealing with the application of Article 1110 of the Code civil is
the Dufy case which was dealt with by the Court of Cassation. It was about a purchaser who bought, what
he thought was, an original painting by the French artist Jean Dufy. However, after inspections, it turned
out that the artwork was fake, and therefore, inauthentic. The buyer then sued the seller under Article
1110 CC and was able to claim damaged from the auctioneer under Article 1382 CC.44

Another case which depicts the application of Article 1110 CC when dealing with authenticity of
artworks is the Spoerri case.45 The buyer, Mr. Brossard, purchased a painting in a public auction which
was claimed to be an original work by Daniel Spoerri. The purchaser even received a licenced guarantee
that the artwork is original. However, it turned out that it was actually inauthentic and it was made by an
eleven year old child. Mr. Brossard was tricked to believe that the painting was an original one and he
was not informed that, in fact, it was not. Therefore, the court decided that since the art piece is not
created by the mentioned author, and this authenticity criteria was essential for the buyer, there is a
violation of Article 3 of the decret n81-255 du 3 mars 1981 sur la repression des fraudes en matiere de
transactions doeuvres dart et dobjets de collection as well as Article 1110 Code civil. Consequently,
the sale of the artwork was annulled by the court.46

Remedies under New York Law


The New York legal system is a common law legal system, therefore, it applies the objective approach
when dealing with contracts. The main aspects of this approach is that only the external evidence is
recognized and the intentions of the parties are not important. The formation of the contract must be
concerned with communication and not with cognition. Therefore, what is important is that the parties
receive what they have explicitly agreed upon in the contract.47

44
Cour de Cassation, Chambre civile 1, 3 avril 2007, 05-12.238
45
Cour de cassation, First Civil Chamber, (pourvoi no. 03-20.597)Bull.civ. 2005.I. no. 412, p. 344
46
Summary of the Spoerri case by <https://law.utexas.edu/transnational/foreign-law-
translations/french/case.php?id=1122> accessed on 28.03.2017
47
Barnes (n 41) p. 359, accessed on 27.03.2017

12
Under the law of New York, the legal theory, dealing with cases of purchasing fake artworks without
knowledge of their inauthenticity at the moment of the transaction, is a mixture of tort law and contract
law. They buyer has the possibility of filing a lawsuit against the seller on the grounds of
misrepresentation, fraud or the breach of the warranty. However, this theory can present a lot of issues
and obstacles to the buyer, because the test of authenticity is largely dependant on the opinions of experts
and it is impossible to approve or disprove definitively.48

If a party wants to bring a case against another party on the grounds of fraud, the common law legal
system requires proof of several elements. First, there needs to be a representation regarding the material
fact. Next, this representation must be a false one. Thirdly, the speaker must have had belief that the
representation was not true. Afterwards, the speaker must have intended that the other party would act on
the false representation. Then the plaintiff must have justifiably relied on the representation to his or her
detriment. Lastly, the plaintiff should not have been aware in any way that the representation was false
and he must have reasonably believed that it was true.49

A common practice in the New York legal system when dealing with art trade is the issuing of warranty
of authenticity. If the warranty is breached, the victim has the right to start proceedings against the other
party. The relevant legal instrument under New York law when it comes to defining the creation of the
warranties of authenticity is the Uniform Commercial Code. Section 2-313 deals with express warranties
by Affirmation, Promise, Description, and Sample. Under subsection (a), the legislator establishes that an
express warranty is created whenever the seller states a fact or promise which relates to the goods and
which becomes a part of the basis of the bargain. The creation of the warranty means that the goods must
conform to the promise of the seller. The same applies to any description of the goods which is made part
of the basis of the bargain, as stipulated under subsection (b).50

The codification of express warranties in section 2-313 provides the buyer with a remedy which can be
found to be dispositive of almost every sale of fake art. Moreover, turning to the objective approach of the

48
Gerstenblith (n 2) p. 339
49
ibid
50
ibid p. 345

13
New York system, express warranties may arise regardless of the intention of the seller. It is not a defence
that the seller acted in good faith and without knowledge that the artwork he sold was inauthentic.51

New York Case Law on Remedying Inauthentic Purchases


A relevant case, which demonstrates the application of the Uniform Commercial Code as a remedy in a
situation of purchasing fake art, is Rogath v. Siebenmann.52 The purchaser, Rogath, bought a painting
from Siebenmann which was claimed to be an original from the seller. However, when Rogath sold it, the
new buyer found out it was a fake and claimed back their money. Consequently, Rogath brought a claim
against Siebenmann for breaching the warranty of authenticity. The court ruled in favour of Rogath and,
based on section 2-313 of the Uniform Commercial Code, there was a violation of the warranty of
authenticity.53

Conclusion
The art market is one of the most unstable and irregular economies. Although the origins of the market go
back hundreds of years, it is only in the twentieth century that it has become widely available. With the
emergence and development of some state economies, the art market has become increasingly
international and attractive to various potential purchasers from all over the world. However, these newly
wealthy people often lack knowledge of the art world and can become easy targets for forgers. Therefore,
the issue of authenticity has become one of the biggest factors in the market for fine arts and also its most
problematic aspect.

Two of the most important importers and exporters in the art world, New York and France, have naturally
created legal instruments to combat the bane of the art market. The French use the decret n81-255 du 3
mars 1981 sur la repression des fraudes en matiere de transactions doeuvres dart et dobjets de
collection and the applicable rule in New York is the New York Arts and Cultural Affairs Law. Both of
these documents refer to the correct terminology that is to be used when certifying an artwork as
authentic. Furthermore, the New York Arts and Cultural Affairs Law deals with the creation of a warranty
for authenticity, the most important part when seeking a remedy.

51
Uniform Commercial Code Warranty Solutions to Art Fraud and Forgery. William & Mary Law Review 14(2),
1972, p. 409-429<http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=2621&context=wmlr> accessed on
28.03.2017
52
Rogath v. Siebenmann, United States Court of Appeals, Second Circuit, 1997 129 F,3d 261
53
Gerstenblith (n 2) p. 348 - 352

14
The most notable difference between the two systems is the approach they adopt when dealing with
remedies. France takes the subjective approach and looks at the intention of the parties. If there are
violations, remedies could be sought under Articles 1109, 1110, 1116 and 1382 of the Civil code. New
York law, however, adopts the objective approach and the judge would only look at what is agreed upon
in the contract, regardless of the intention of the parties. Remedies can be found under the Uniform
Commercial Code and they include misrepresentation, fraud and the breach of contract.

The art market gains more popularity with each passing year, annually making new records for money
spent on an artwork, usually in the hundreds of millions. Since inauthenticity makes art worthless and can
cause damages amounting to several million dollars, its avoidance remains as the number one priority to
the major auction houses and the biggest fear to collectors world wide.

Bibliography
Primary Sources
French Case Law
Cour de Cassation, Chambre civile 1, 3 avril 2007, 05-12.238

Cour de cassation, First Civil Chamber, (pourvoi no. 03-20.597)Bull.civ. 2005.I. no. 412, p. 344

United States Case Law


Hahn v. Duveen, 234 N.Y.S. 185 (Sup. Ct. 1929)

Lagrange v. Knoedler, 11-8757, U.S. District Court, Southern District of New York (Manhattan)

Rogath v. Siebenmann, United States Court of Appeals, Second Circuit, 1997 129 F,3d 261

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Arnau 1961
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Thompson 2008
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(Unknown Author) 1972


Uniform Commercial Code Warranty Solutions to Art Fraud and Forgery. William and Mary Law
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