To be or not to be - 'The Cardsharps’

Published on 9 February 2015 at 12:19

A former owner who had his painting auctioned at Sotheby's in London in 2006 has lost a case against the auction house in England. The former owner believed that Sotheby's had been negligent.


His painting entitled: the "Card Sharpeners", had not been auctioned by Sotheby's as a work by the master Caravaggio, but (only) as a work by a follower of Caravaggio. Indeed, after the auction the buyer made it public that he had bought a genuine Caravaggio - a work that is now said to be insured for £10 million. If so, he bought the painting at Sotheby's for a bargain price of £42,000.


The owner of a painting had engaged Sotheby's in 2005/2006 to appraise the painting and sell it at auction. At the time of the contribution, the owner had indicated that he had obtained the painting from an inheritance from someone who had previously owned a Caravaggio, and that he thought this painting was also a work by Caravaggio.
Sotheby's was of a different opinion. The painting was auctioned in 2006 as a work by a follower of Caravaggio. The buyer at auction (an expert on the works of Caravaggio) had the painting cleaned and restored. He later announced that the work must have been by the master himself.

The seller (auctioneer), alarmed by the news, then reported to Sotheby's. He felt that Sotheby's had failed to protect the painting. He felt that Sotheby's had been negligent by not attributing the work to Caravaggio. Sotheby's, on the other hand, claimed to have acted prudently and carefully. The seller commenced proceedings against Sotheby's. The court, the High Court of Justice in London, ruled on 16 January 2015 and found in favor of Sotheby's.


The court ruled that Sotheby's has a general duty of care to its contributors in carrying out its business. There was no question of a so-called "heightened" duty of care, as the contributor in question argued, in this case. The fact that the contributor had asked Sotheby's to examine the painting and had indicated that the painting had previously belonged to a person who already owned a Caravaggio and that the seller himself was of the opinion that it was a Caravaggio, did not, in the opinion of the court, entail an increased duty of care for the auction house. Owners, the judge ruled, often have an overly high view of the objects in their possession. 


The judge further considered that the auction house had to carry out its work objectively. In other words, Sotheby's had to form a well-considered opinion and, where necessary, obtain (external) advice. In this respect, the court considered, what may be expected from a competent auction house, whereby a leading auction house such as Sotheby's may be expected to have extra expertise, employing highly qualified staff who, if necessary, call in the help of the best art historians to whom they have access. Furthermore, an auction house like Sotheby's can certainly be expected to devote sufficient attention and time to arrive at informed judgments. And also for Sotheby's it applies that it should know its limits and seek further professional advice if necessary. 


The judge found that in this case Sotheby's had properly fulfilled its task in attributing the painting. The judge accepted that in doing so Sotheby's had relied in particular on the experience of its staff who, with all their knowledge and experience, had assessed the painting on sight. The fact that the painting was "dirty" did not alter this: qualified personnel can - the judge ruled - "see through" this.


The court considered that when assessing the question of whether Sotheby's had exercised sufficient care, it comes down to the question of whether another comparable (leading) auction house could also have come to the conclusion that the painting could not be attributed to Caravaggio.


In doing so, the judge discussed in detail the characteristics of the work. The judge ruled that Sotheby's assessment of the painting could lead to the conclusion that further research was not required. Sotheby's assessment that on the basis of the research carried out (study with the naked eye and X-ray photos) the painting did not have the "potential" of Caravaggio - so that further (technical) research before the sale was not indicated - was accepted by the judge as sufficiently professional.


The judge also left open the question of whether Sotheby's should have informed the seller that there had been a lot of interest in the painting during the "viewing days" (prior to the auction), and that this had been a reason for Sotheby's to take the painting down from the wall and to study it again (internally). The judge ruled that Sotheby's did not have to inform the seller, because this did not lead to a different opinion. 


With that, the judge found that Sotheby's was not liable, even in spite of subsequent developments. 


Comment Oostwaard 
The judgment of the existence of a duty of care of auction houses is not new and the outcome of the case is not shocking. In the Netherlands, too, a contractor must act as a reasonably competent and reasonably acting professional would act. Someone who guarantees that a work is by a painter naturally has a different obligation than one who merely gives his professional opinion. The best steers are on shore and after a discovery is made it is easier to state what should have been done. This case does teach us that when researching and attributing art, it is important to keep a careful record of how the contractor arrived at his (professional) opinion. The judgment also gave a nice characterization of the differences between lawyers and art historians when it comes to attribution: "it is clear that an art historian may express his or her current view with considerable certainty based on what may appear to a lawyer to be scant available evidence." Whether the case will lead to an appeal decision remains to be seen. Therefore perhaps: to be continued.


Link to the judgment


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