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07 Jan 2021

What are the Generally Accepted Views of Scholars

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“Buyer Beware” is the order of the day when it comes to buying art, especially at auction. As regular attendees at auctions will be aware, the auction houses’ conditions of sale often make clear that the artwork is sold “as is” with all faults and imperfections and errors of description. Even though the auction house will be responsible for putting together the description of the artwork in the sale catalogue, they will expressly set out that they make no representations or warranties with respect to the physical condition, size, quality, rarity, genuineness, authenticity, importance, provenance, exhibitions, literature or historical relevance of the Property… the list goes on.

That said, the auction houses do offer up an olive branch of comfort to their buyers in the form of a limited warranty of authenticity. It is called different names by different auction houses: Bonhams say “Forgery Warranty”, Phillips say “Authorship Warranty”, Christie’s say “Authenticity Warranty”, Sotheby’s say “Authenticity Guarantee”.

The gist of these limited warranties is that if the relevant warrantied information (usually the attribution of the artwork) is shown to be wrong (either because the artwork is found to be misattributed or a counterfeit) then, subject to certain stringent conditions, the auction house will unwind the sale. The stringent conditions often are (i) the warranty is limited to 5 years from the date of sale, (ii) the buyer can return good title to the artwork, and (iii) the artwork is in the same state as it was sold. Such conditions make sense, as ultimately if the limited warranty is exercised the auction house will seek to reverse the sale such that the seller will be returned the artwork and the buyer will be refunded (easier said than done of course).

However, even if these stringent conditions are met, a buyer is not home and dry as there is still a potential get out of jail clause for the auction houses (who will presumably not want to lose their commission and go through the rigmarole of trying to reverse the sale).

The “Generally Accepted Views of Scholars and Experts”

Most auction houses limit their already limited warranty of authenticity if their catalogue description corresponded with the generally accepted opinion of scholars and experts at the date of sale, or fairly indicated there was a conflict of opinion among scholars and experts. 

This exclusion is of course easy to apply in extreme situations, for example if it transpired that Claude Monet's Meules (sold in May 2019 for $110.7m) was actually misattributed there would be no difficulty in saying that at the time of the sale it accorded with the generally accepted opinion of scholars and experts.

Unfortunately (or fortunately, depending on your involvement in the art market), attributions are rarely a subject of such clarity and notoriety. Indeed, the need for the clause arises from the fact that it is common for the state of knowledge and scholarship to develop and artworks which were previously thought to be authentic are deemed to be inauthentic (for example “Head with Horns” which was purchased by the Getty Museum in 2002 and believed to be by Paul Gauguin had its attribution status demoted to "unknown" last year as a result of research) and works which are thought to be inauthentic are rehabilitated as authentic (for example the Salvator Mundi by Leonardo da Vinci). Understandably, the auction house does not want to be liable for a change in the opinions of scholars.

But what does the “generally accepted views of scholars and experts” actually mean? How many scholars are required to make a generally accepted view? Is there a difference between scholars and experts? Do they have to state their views publically? Does the scholar need to see the art in person? Does the scholar need to see scientific analysis on the art before their view should be considered relevant? What if there is only one leading scholar for that artist?

With it being in nearly all of the major auction houses’ terms and conditions one would have thought this clause would have been litigated at some point and that there would be legal guidance in the form of a judgment setting out the precise scope of this clause. Yet this is not the case. Before 2019, as far as the author is aware, this clause had never been tested in this country or any of the other major jurisdiction. However, in December 2019, Knowles J handed down judgment in Sotheby’s v Mark Weiss Limited and Fairlight Art Ventures LLP and Ors and addressed the meaning of the clause.

The case involved the sale of the painting “Portrait of a Gentleman, half length, wearing Black” which was sold through Sotheby’s by private treaty as a Frans Hals. Sotheby’s sought to unwind the sale several years later pursuant to the terms of the Authenticity Guarantee. Ultimately, the question of authenticity of the painting was not an issue which the Court was required to resolve. Upon hearing the evidence, the judge left the question as to authenticity open: "there is also room for views that the Painting is not counterfeit, and those views too would be reasonable and rational and not capricious or perverse" However, one of the many points the Court did have to resolve was what did the “generally accepted views of Scholars and Experts” actually mean.

Unfortunately, for those looking for certainty and clarity they will be disappointed. Knowles J first made the general observation: “The words “generally accepted views of scholars and experts” are to be given their ordinary meaning, in context.” So far, so good. One would expect the judge to clarify what the “ordinary meaning” is so that one might be able to then answer some of the questions posed above. Sadly, this was not the case. Knowles J explained what the words do not mean but failed to actually say what they do mean: “The words do not set a headcount or a majority, or a weighting between one scholar and another or between a scholar and an expert. On what is a question of opinion the words require that a generally accepted opinion has been reached”. In a perfect example of tautology, he concluded by accepting that “the views [of the scholars and experts] that are material are considered views which result from the application by scholars and experts of their scholarship and expertise.” This does not appear to further our understanding. When would a relevant scholar and expert give a view that did not apply their scholarship and expertise. Moreover, what is the difference (if any) between a scholar and an expert? The parties submitted various arguments on the point which the judge did not engage with.

Knowles J did however make two useful observations regarding the clause, albeit the first is somewhat stating the obvious:

  1. He accepted that it can take time, after a first discovery of a work, to reach a point where there are “generally accepted views of scholars and experts”.
  2. Sotheby’s, as a corporate entity, was not a scholar or expert and its acceptance of the views of scholars and experts does not mean they were “generally accepted”.

In the end, Knowles J concluded from the evidence before him that as at June 2011 the “generally accepted views of Scholars and Experts” exception did not apply to the painting before him albeit he conceded that “in time a “generally accepted view of scholars might have formed”.

Knowles J' decision, including his interpretation and application of the "generally accepted views of scholars and experts" was appealed to the Court of Appeal this year and once again the Court had to consider the meaning of the proviso1.

However, ultimately the Court of Appeal found "no fault" with Knowles J's construction of the proviso (albeit providing a little more substance). Whilst noting that the wording invites argument, the Court of Appeal held: "what is required is for "views" plural to have coalesced into a "generally accepted view" singular. Another way of putting it, which avoids the use of the word "view's", would be to say that the question is whether there was a consensus (ie a generally held view not requiring unanimity) among scholars and experts at the time." The words did not require a "weighting" between scholars and experts. However, when deciding whether there was a generally accepted view, it would be necessary to identify who the scholars and experts were in the field, and to survey their views in the light of their numbers, eminence and the degree of consideration that each had given to the question.

In the present instance, the Court of Appeal agreed that as a newly discovered painting the Hals did not yet have a generally accepted view1. So what general conclusions can we draw? Despite the clause having come before the Court of Appeal it will still be open to interpretation and conducting the factual exercise of who thought what, when and on what basis, will not be straightforward. It is therefore likely that the wiggle room will benefit the auction houses more than their clients; the auction houses will seek to rely on the clause to avoid having to rescind sales and will have deep pockets should further litigation be required to resolve the factual dispute about whether or not there was a “generally accepted view”. This is unsurprising as the auction houses include the clause for their own benefit to provide protection against any change in scholarly opinion after a sale which can occasionally occur usually with Old Masters.

 

1 [2020] EWCA Civ 1570

 
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