- Cour de cassation, First Civil Chamber, (pourvoi no. 03-20.597)Bull.civ. 2005.I. no. 412, p. 344
- 15 November 2005
- Translated French Cases and Materials under the direction of Professor B. Markesinis and M. le Conseiller Dominique Hascher
- Translated by:
- Tony Weir
- Professor B. S. Markesinis
In view of article 3 of the decree no. 81-255 of 3 March 1981, along with article 1110 Code civil:
According to article 3 of the decree no. 81-255 of 3 March 1981, a statement that a work of art or object bears the signature or mark of an artist constitutes, in the absence of an express disclaimer of authenticity, a guarantee that the artist in question is really the creator, and it is the same where the name of the artist is followed immediately by the description or title of the work; “creator” here means the individual who personally produces or executes the work or object , and in public auctions this is a material condition of authenticity.
Given that at a public auction the auctioneer M. Cornette de Saint-Cyr knocked down to M. Brossard at the price of FF 38,325 a picture described in the catalogue as follows: “Daniel Spoerri. My breakfast 1972, picture box: dishes and other objects glued on wood. On the back is an inscription in the artist’s words “done in February-March 1972, at Paris, 17e. Signed and dated on the back. 80 x 45 cm.”;
When it transpired that the picture had been produced not by the artist himself but by an eleven year old child, a visitor to the artist’s exhibition to whom Daniel Spoerri had given a “licensed guarantee” to stick on the back of the picture he was invited to create, M. Brossard sued M. Cornette de Saint-Cyr to have the sale rescinded;
Given that in dismissing the claim by M. Brossard the judgment stated that for a picture to be “by” an artist it is neither a necessary nor a sufficient condition that he should have executed it personally, and that here the requirement of authenticity, on which alone the purchaser’s consent depended, was satisfied;
Given, however, that the item sold by public auction had been produced “under licence” by a third party and that it was insufficient to alert the purchaser to the fact that the work was not from the artist’s own hand, that the wording of the catalogue amounted to a guarantee and thus caused the purchaser to make the excusable mistake that the artist was indeed the creator, the court of appeal failed to draw the correct legal conclusions from its findings as regards the text mentioned above and article 1110 Code civil.
In view of article 3 of the decree no. 81-255 of 3 March 1981 on combating fraud in sales of works of art and collectibles, and article 1382 Code civil;
Given that In dismissing the claim for damages brought by the purchaser at public auction against the auctioneer after holding that, contrary to the indications in the catalogue of sale which involved a guarantee that the work was really by the artist, the work was not actually by the artist himself but was executed under licence by a third party, the court of appeal violated article 3 of the decree no 81-255 of 3 March 1981 on combating fraud in the sale of works of art and collectibles as well as article 1110 Code civil, since it is the duty of an auctioneer at a public auction to state the true creator of the work offered for sale, and that in dismissing M. Brossard’s subsidiary claim for damages the court below, in stating that the auctioneer could not be said to be guilty of any fault since the information given in the catalogue of sale was correct and adequate and that any purchaser could see what the artist said about it by looking at the back of the work, violated article 1110 Code civil.
For these reasons quashes and annuls …