Liability for the Acquisition of Faked or Wrongly Attributed Works of ...

More documents

Recommendations

Info

IV. Consumer contract Whether consignments and sale agreements constitute consumer transactions within the meaning of state consumer protection laws is determined by state law. The Federal District Court for the Southern District of New York held in Mickle v. Christie’s 20 that a consignment agreement for sale of a painting 21 by an auction house was not a consumer transaction “primarily for personal, family or household purposes.” 22 Furthermore, it stated that “a unique, one-of-a-kind painting [is not] a typical consumer good, nor [is] an agreement governing the consignment for auction sale of […] work[s] of art a consumer transaction within the meaning of [the statute].” 23 According to a decision rendered by the State Court of Appeals of Arizona, a misled consumer could use a state consumer fraud statute to sue an auctioneer for damages for concealing the provenance of art and misrepresenting its value, found that plaintiffs did not prove the requisite injury was caused by the alleged misrepresentations. 24 V. Liability 1. Liability of auction houses Buyers of art may also sue auction houses and galleries which shall illustrate the following cases. 20 John T. Mickle v. Christie’s, Inc., 207 F.Supp.2d 237 (S.D.N.Y. 2002), reh’g denied, 214 F.Supp.2d 430, 432 (S.D.N.Y. 2002). 21 The case was about the unsigned work known as Billy Bowlegs attributed to the American artist Carl Wimar (1828–1862). 22 NY CPLR § 4544 provides, in relevant part, as follows: “the term ‘consumer transaction’ means a transaction wherein the money, property or service […] is primarily for personal, family or household purposes.” 23 John T. Mickle v. Christie’s, Inc., 214 F.Supp.2d 430, 432 (S.D.N.Y. 2002), with reference to Christie’s, Inc. v. Croce, 5 F.Supp.2d 206, 207–208 (S.D.N.Y. 1998) holding that a transaction for an auction house’s services and an advance of funds against the proceeds of sale of certain paintings did not constitute a consumer transaction under NY Gen. Oblig. Law § 5-327(1)(a) (McKinney 2001). 24 Nataros v. Fine Arts Gallery of Scottsdale, Inc., 126 Ariz. 44, 612 P.2d 500 (1980). 416
a) Voitier v. Antique Art Gallery In Voitier v. Antique Art Gallery, 25 a court in Louisiana granted rescission of a sale contract by which plaintiff bought at auction a painting by George Inness (1825–1894) subsequently determined to be a fake. The plaintiff purchased the work of art by telephone bid. When the painting was delivered to the plaintiff, it lacked the auction house’s promised letter of authenticity. Authentications determined the painting to be fake. Since before the auction defendant represented the painting as an Inness to plaintiff and advertised it as by Inness, the court found the buyer was entitled to rescission under unilateral mistake. 26 b) Shafrazi v. Christie’s In Shafrazi v. Christie’s 27 New York State Supreme Court Justice Cahn denied a motion to dismiss a claim for fraud made by a buyer who had acquired a counterfeit work from an art gallery which had purchased the work from Christie’s auction house in New York. As a consequence, the plaintiff may be entitled to a claim for fraud and punitive damages from Christie’s despite the fact he did not buy the work (directly) from the auction house. In 2001, Guido Orsi purchased a painting described as being by Jean Michel Basquiat (1960–1988) from the Tony Shafrazi Gallery in New York. The gallery had itself acquired the painting from Christie’s New York in 1990. When the gallery sold the painting to Mr Orsi it is alleged that it was described as “Pur- 25 Robert Voitier v. Antique Art Gallery et al., 524 So.2d 80 (Louisiana Ct. App. 3d Cir. 1988), writ denied, 531 So.2d 271 (Louisiana 1988); see Darraby (supra note 17), § 5:58, 332, footnote 1. 26 Notice that the catalogue recited that neither the auction house nor its consignor was liable for description, genuineness, or provenance, and that no statement constituted warranty. According to the court, the defense’s arguments were ineffective, since it did not appear anywhere on bills of sale or invoices presented to the buyer that the terms were not brought to the buyer’s attention nor explained to him, and that contrary to the catalogue disclaimer, the auction house had assured the buyer when he viewed the painting that the work of art was genuine, as well as advertising the painting as created by George Inness. 27 Tony Shafrazi Gallery, Inc. v. Christie’s, Inc., 2008 WL 4972888 (N.Y.Sup. 2008); Derek Fincham, Towards a Rigorous Standard for the Good Faith Acquisition of Antiquities, Syracuse J. Int’l. L. & Com. 37 (2009) 47–48 (1–66); Jo Laird, Christie’s Faces Trial Over “Fraud on the Market” Allegations by a Buyer Who Didn’t Buy at Christie’s, The Legal Canvas, Summer 2009, 17–19; M[artha]L[ufkin], Christie’s sued. Dealer says he was sold a fake, The Art Newspaper, November 2007, 70; Martha Lufkin, Christie’s fraud claim, The Art Newspaper, January 2009, 47. 417
Page 1 and 2: Liability for the Acquisition of Fa
Page 3 and 4: to do the same after having bought
Page 5 and 6: his wife bought a pastel by Georges
Page 7: District of Illinois has found that
Page 11 and 12: 2. Liability of Art Authentication
Page 13 and 14: atorial actions resulted from some
Page 15 and 16: In my point of view, the decision i
Page 17 and 18: in 2002 accusing Seltzer of fraud,
Page 19 and 20: set off newspaper headlines, and th
Page 21 and 22: 2. Kirby v. Wildenstein 75 The plai
Page 23 and 24: VIII. Statute of limitations 1. Fou
Page 25: are in agreement as to the aleatory

Liability for the Acquisition of Faked or Wrongly Attributed Works of ...

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?