On 14 November 2007, a buyer at the Christie's Amsterdam B.V. auction that day acquired a painting titled "A watchtower at the mouth of an estuary" for an amount of approximately € 37.000 (inclusive of buyer's premium).
The auction catalogue described the object as a painting by Jan Josefz. van Goyen (Leiden 1596-1656 The Hague). Christie's "condition report" disclosed that UV-light revealed retouchings and strengthenings. In addition, the report stated that, otherwise, the dirty varnish made further reading difficult.
The buyer had the painting inspected by the Rijksbureau voor Kunsthistorische Documentatie (RKD). In 2008, the RKD concluded (translated):
"although it cannot be ruled out that the painting originally was made by Jan van Goyen himself, in the present condition (...) this painting can not or no longer can be qualified as a work made by the artist himself."
The buyer subsequently contacted Christie's Amsterdam, and commissioned a technical investigation. The expert concluded that microscopic investigation revealed that more than half of the canvas had been overpainted.
The buyer demanded that Christie's Amsterdam take back the painting and pay back the purchase price. Following Christie's refusal, the buyer filed suit against the auction suit before the Amsterdam District Court. The Amsterdam District Court denied the claims and the buyer filed an appeal before the Amsterdam Court of Appeals.
Judgment on appeal: the painting conformed to the agreement
In the proceedings, the buyer argued that as the painting had been overpainted for more than half of the canvas, the painting no longer qualified as a work made by Van Goyen himself. The buyer maintained that, as a consequence, he was entitled to annul the agreement on account of error (dwaling), or rescind the agreement on account of breach of contract (toerekenbare tekortkoming).
By judgment of 11 September 2012 (para 3.3.3.), the Amsterdam Court of Appeals held that the issue to be resolved on appeal was whether the fact (as had become apparent after the sale) that over half of the canvas had been overpainted, entails that Christie's Amsterdam should have amended its item description, should have given a lower price estimate or should have qualified its attribution (e.g. " (was) van Goyen").
Subsequently, the Court of Appeals held (para 3.3.4) that the issue whether painting was in conformity with the agreement, requires an assessment of whether the painting, in view of the nature of the object and the statements made by the seller in respect of the object, possesses the characteristics that a buyer may expect on the basis of the agreement.
With respect to the "nature of the object", the Court of Appeals established that parties agreed that all Old Masters (and therefore also the Van Goyen at hand) to a certain degree have retouchings. On the matter of the "statements of the seller", the Court of Appeals held that on the basis of whole body of information supplied by Christie's (the lot description, the condition report and Christie's terms of sale) the buyer could not reasonably expect to have the certainty that painting was entirely painted by Van Goyen himself.
The Court of Appeals held that the buyer, on the other hand, wàs entitled to expect, given Christie's reputation (an internationally acclaimed auction house, also in the field of paintings), that Christie's opinion had a reasonable basis in fact. In this respect the Court of Appeals held that Christie's opinion that the painting was a work by Van Goyen had a reasonable basis in fact, given that Christie's based its opinion on expert opinions (from the RKD and from the acclaimed expert of Van Goyen's work, Mr. H.U. Beck) as well as on its own investigations (using UV-light).
Christie's argued (and the Court of Appeals concurred) that it cannot be expected from an auctioneer to conduct an an elaborate microscopic investigation. The Court of Appeals, furthermore, held that there is not basis in the expert's report (in which it was established that over half of the canvas was repainted) to conclude that Christie's could not reasonably be of the opinion that the painting was by Van Goyen himself. Neither does the fact that the RKD changed its opinion about the attribution after the sale.
The Court of Appeals further held that in view of the fact that Christie's had warned about the existence of retouchings, it would have been up to the buyer to gain more certainty about the extent of the retouchings if that had been decisive for his decision to buy the painting. The auctioneer within reason is obligated to cooperate to such an investigation, but that does not mean - according to the Court - that prospective buyers are allowed to take the painting with them during the viewing days. Other prospective buyers should also have an opportunity to view the painting.
The Court of Appeals concludes that the painting therefore was in conformity with the agreement. Furthermore, the Court of Appeals held that Christie's had not made any false representations, and therefore rejected a finding of error.
Update 21 juni 2013
The buyer subsequently filed a cassation appeal to the Dutch Supreme Court. On 21 June 2013, the Dutch Supreme Court declared the cassation appeal inadmissible.
Copyright: This contribution was researched, written and published for Oostwaard's Art Law Blog at oostwaard.com/art-law. The copyright to this contribution rests with Oostwaard. Other than sharing or posting a link to the contribution, it is not permitted to reproduce and/or disclose this contribution (in edited form or otherwise), except with the written approval of Oostwaard. It is not allowed to use the material in a context for which it is not intended. The user agrees to indemnify Oostwaard against any claims from third parties with regard to the use of the material in question.