Is Selling a Forgery Against the Law?

By James B. Hicks

One of the most time-honored rules of the marketplace is caveat emptor, or “buyer beware”, which provides that a buyer of goods makes the purchase as is and at the buyer’s own risk. One of the author’s cases, which involved the Getty Museum’s litigation over a forged marble head, shows how the doctrine of caveat emptor is being challenged under current law.

The Getty Museum originally purchased the head for several million dollars from a French antique dealer. The sales contract described it as an ancient Greek marble head by the artist Skopas, and even specified the original placement of the head on the facade of a particular Greek temple over 2,000 years ago.

Many years after the purchase, the Getty uncovered evidence that the marble head was a modern forgery, and based on this new development, promptly sent the dealer a letter to rescind the sale. When the dealer refused to refund the purchase price, the museum filed suit.

Under the terms of the sales contract, the dispute was governed by California law. The seller/dealer’s primary argument was that under California law, designating an antique as being by a specific artist could not be a guarantee that the work indeed is by that artist. In fact, that was the law for hundreds of years and into this century, and courts refused to allow buyers of antique works of art to sue on disputes over authorship, since good faith attributions of antiques were generally held to be mere opinions which could not be the basis of a lawsuit. As the leading English case explained, in rejecting a lawsuit brought to recover the price paid for forged paintings, “the pictures were the work of artists some centuries back, and there being no way of tracing the picture itself, it could only be a matter of opinion whether the picture in question was the work of the artist whose name it bore, or not.” Jendwine v. Slade, 2 Espinasse 572, 574 (1792). See also Smith v. Zimbalist, 2 Cal.App.2d 324, 327-32 (1934).

In more recent years, the courts have turned away from this doctrine, and now generally hold that just about any unqualified description can be a “warranty,” which effectively guarantees that the item sold is as described. Indeed, one recent California case held that a sales brochure’s description of a ship as “seaworthy” allowed the buyer to sue once the ship sank. Similarly, a leading California case involved a violin purchased by Efrem Zimbalist, Sr. The violin was described as a Stradivarius but turned out not to be by the master; Mr. Zimbalist’s money was returned to him. Smith, supra, 2 Cal.App.2d at 333. See 3 Witkin, Summary of California Law, Sales §60, at p. 56 (9th ed. 1987).

In another case involving a suspect Ingres drawing, an English court relied on similar principles to hold that a buyer can rely on the seller’s description of a work of art as long as the piece is not an obvious forgery. Since the Ingres drawing turned out to be fake, but was not obviously so, and the seller had represented it to be a genuine Ingres, the buyer was entitled to cancel the sale even though ten years had passed. Peco Arts, Inc. v. Hazlitt Gallery Ltd., 1 W.L.R. 1315, 1326 (1983).

And in the Getty case, that is how the antique dealer’s argument fell apart, because his sales contract did not describe the work generically; instead, the contract described the work specifically, and provided the name of the artist, the date of execution, and even the original location. To the extent the piece did not meet this exact description, it did not meet the terms of the sales contract. Thus, the court found that under applicable California law, once the description was shown to be incorrect, the Getty could rescind the sale and get its money back.

All of which goes to show that if you want to buy an expensive antique or work of art, you should (1) purchase it from a legitimate seller or through a reputable auction house, or (2) at least have a good lawyer draft the sales contract.

An earlier version of this article appeared in State of the Arts, a Butterfield & Butterfield publication.

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