On 3 December 2014, the Court of Appeal of Versailles (France) dismissed a damage claim lodged against the art historian Werner Spies.
Spies, expert-connaisseur of the work of German painter Max Ernst (Brühl, 2 April 1891 - Paris, April 1, 1976), was sued for allegedly having incorrectly attributed a painting to Max Ernst in 2002. In 2010, the work turned out to be a forgery. The buyer who purchased the work in 2004, thought to have bought a genuine work by Ernst, and in the proceedings asserted having relied on Spies’ expert opinion on acquiring the painting. In first instance, the court of Nanterre ruled against Spies. On appeal, however, that judgment was overturned in favour of the art expert.
Background
At the turn of the century, the art expert Werner Spies had been approached by someone who said to be in possession of paintings by Max Ernst. The person claimed the paintings had belonged to his grandfather. The grandfather supposedly was a close friend of the former Berlin art dealer Alfred Flechtheim. The asserted provenance was plausible for Spies. Ernst had in fact himself once told Spies that he had given works to Flechtheim for safe-keeping in the early twenties of the last century, and that these works had never been returned. Flechtheim emigrated to England in the thirties; he died in 1937 in London from blood poisoning. His Berlin business was seized by the Nazis and liquidated. The works of Ernst were considered as “degenerate” art by the Nazis.
Having reviewed the work titled (translated) “Earthquake", Spies apparently became enthusiastic. The technique and style of the art work resembled works by Max Ernst. Spies was convinced this was in fact a genuine work by the artist. In addition, a label of the Flechtheim dealership was affixed to the reverse side of the painting. In 2002, Spies wrote on the back of a photograph of the painting, as was not uncommon for him to do so, that he intended to include the work in his 'catalog raisonné' of the works of Ernst Spies. An overview catalog, or catalog raisonné (CR), is a known phenomenon in the art world. The fact that a certain work is (unreservedly) included in a CR, means that the expert recognizes the work as being genuine work by the artist, which gives the work a certain credibility.
The painting was exhibited in 2004 at the "Biennale des Antiquaires" in Paris and sold through a gallery. It was purchased for an amount of $ 900 000. The buyer in 2009 had the work sold through auction at Sotheby's. The sale, however, was canceled after the auction. The work turned out to be a forgery by Wolfgang Beltracchi, an art forger (see also the article: German auction house Lempertz liable for breach duty of care).
Besides filing suit agains the director of the selling gallery, whose position is not discussed for purposes of this entry, the buyer held Werner Spies liable for the damage suffered, arguing that on acquiring the work, he had relied on Spies’ expert statement. Spies denied any responsibility towards the buyer. Spies argued that he he had merely assessed the painting for purposes of including it in the CR, rather than as advisor in the sales transaction. Spies claimed to be unaware of the sale and his note on the back of a photograph on the painting was merely an expression of his intent to include the work in an upcoming CR. The French court in Nanterre in first instance ruled against Spies, and Spies appealed this decision.
The French appellate court concurred with Spies’ position that he had not acted as an advisor in the sale. Spies’ statement pre-dated the sales transaction by two years. The appellate court held that a person who is issues an opinion for purposes of compiling a CR does not have the same level of responsibility as the person who is consulted in connection with a proposed sale. The appellate court, furthermore, held that Spies’ statement could not be qualified as an expert statement in connection with a sales transaction. According to the court, Spies could not have been expected to conduct a technical analysis on the paint or canvas in view of the substantial costs involved in such an endeavour. The appellate court held that Spies could reasonably have concluded that the painting was a work by Max Ernst. The Beltracchi forgeries were extremely well- executed (noting that one of the forgeries even had Max Ernst’s widow fooled), with a well-construed asserted provenance rooted in history. The appellate court this ruled that the buyer had failed to prove that Spies had made a culpable error, ultimately exonerating Spies from liability.
Commentary Oostwaard
The court distinguishes between two types of an authenticator's assessment, i.e. as advisor in a specific sales transaction and as a compiler of a CR. Spies’ assessment was considered to fall within the latter category, and non- contractual in nature. The appellate court held that Spies’ expert statement did not meet the characteristics of an expert statement for a sales transaction. The appellate court did not elaborate on such requirements, which is unfortunate as the court’s findings could have given useful guidelines for art authenticators in terms of content and effect.
The appellate court, however, firmly ruled that Spies could not be expected to bear the expense of commissioning technical analysis of the paint or canvas. Max Ernst’s body of work is simply to large. While the court’s decision is understandable, the court’s finding serves as a reminder for experts who compile a CR to clarify the basis of the research and how the expert arrived at its opinion. This is because the expert also out of contract could be held liable for damage arising out of his or her efforts. The expert must act as a reasonable and competent professional. The scope of his/her duties will vary from case to case and will depend on the nature and specific circumstances of the case. The complier of a CR (naturally) has freedom of expression, however, within the limits of the law. Actin unlawfully can be one of these limitations. So the moral of the story is: professional associations want to inform their members about the desired format and the process of drawing up their expert statements/reports, and the importance of taking out a solid professional liability insurance.
The full text of the judgment (in the original French language) can he found here.
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