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05 Feb 2016

Relief for art experts as French court finds author of catalogue raisonée not liable for opinion expressed outside of a transaction

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On 3 December 2015, the Court of Appeal of Versailles overturned a judgment of the tribunal de grande instance de Nanterre which ordered art expert Werner Spies and Jacques de la Béraudière to pay over EUR 650,000 to Monte Carlo SA (formerly Minneba Limited Corp) in connection with Monte Carlo's purchase of an oil painting entitled "Tremblement de Terre" purportedly by the artist Max Ernst.

Background

The painting was exhibited by a gallery of which Jacques de la Béraudière was the managing director during an antique fair in Paris in 2004. During the exhibition, the gallery made available an information sheet which included a picture of the painting, on the back of which appeared a notice signed by Mr Spies dated 24 July 2002 stating that the painting would be included in the catalogue raisonné of Max Ernst of which he was the editor.

Monte Carlo purchased the painting in 2004 through the gallery and consigned it to Sotheby's for sale in October 2009. The painting was sold at auction by Sotheby's in New York for approximately USD1.14 million. Sotheby's was subsequently informed by the German police that the painting may be a forgery by Wolfgang Beltracchi. This was confirmed by analyses on the painting which revealed pigments which only came into use some time after the date the painting was supposed to have been produced. In the light of this, in December 2010, Sotheby's informed Monte Carlo that the sale had to be cancelled and that Monte Carlo was required to repay the proceeds of sale.

The proceedings

In March 2011, Monte Carlo commenced proceedings against Messrs Spies and de la Béraudière. Monte Carlo claimed that it had relied on Mr Spies' notice in deciding to purchase the painting. It argued that, by stating that the painting would be included in the catalogue raisonné of Max Ernst, Mr Spies had confirmed its authenticity and, in doing so, had engaged his liability. In relation to Mr de la Béraudière, Monte Carlo alleged that he had been negligent in his verification of the painting's provenance. 
Monte Carlo obtained judgment against Messrs Spies and de la Béraudière in the tribunal de grande instance de Nanterre. Mr Spies appealed against this judgment.Mr Spies argued that the handwritten notice he placed on the back of the picture of the painting was not equivalent to a certificate of authenticity; rather it was simply a statement of his intention. He argued that, as the notice was not written by him in the context of a sale of the painting and, given that when he wrote the notice he did not know that it would be deployed to facilitate the sale of the painting, the Court should not have applied the case law applicable to cases where a professional expert delivers a certificate of authenticity in the context of a sale.

Mr Spies' appeal was successful. The Court of Appeal overturned the decision of the lower court, making the following findings:

  1. The author of a catalogue raisonné who expresses an opinion outside of a sales transaction cannot be held liable in the same way as an expert who is consulted in the context of a sale;
  2. The author of a catalogue raisonné cannot be required to carry out a scientific analysis of every artwork before admitting it to the catalogue. The Court noted that such analysis would require the removal of fragments for testing and involve significant cost;
  3. Mr Spies did not commit a wrongful act in giving his opinion on the painting (within the meaning of article 1382 of the French civil code, which provides that, anyone who causes damage to another by his "fault" shall be obliged to compensate that person for such damage). In reaching this determination, the Court considered the basis on which Mr Spies concluded that the painting was by Max Ernst – he considered that, from a stylistic point of view, it conformed to the artist's style, and that the available information regarding the history of the work appeared sufficiently plausible;
  4. Regarding Jacques de la Béraudière, the Court held that Monte Carlo had failed to establish that he had committed an unlawful act separable from his functions as director of the gallery which could be attributed to him personally.
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