In view of article 1110 Code civil;

Given that at an auction conducted on 21 November 1989 by M. Renaud with the assistance of an expert, M. Prouté, Drina Investment bought a first-proof pastel described in the catalogue as being by Mary Cassatt and entitled “Bust of Simone in feathered hat, looking left”; that Drina Investment was later informed by the Mary Cassatt Committee, founded in 1990, that the attribution was dubious; and that the expert appointed by the court was unable to come to a firm conclusion whether the work were authentic or not;

Given that in rejecting the claim that the sale be annulled for mistake on an essential quality of the item sold and dismissing the claim for damages against the auctioneer and the expert, the court below simply stated that in view of the hesitant conclusions of the judicially appointed expert it was impossible to decide definitively that the work was not authentic, and that therefore Drina Investment had not proved that its view of its authenticity was mistaken;

But given that in so deciding without asking whether the supposed authenticity of the work was not an essential quality and whether Drina Investment was not firmly of belief when it bought the picture that it was an original, the court of appeal did not give any legal basis for its decision;

For these reasons…QUASHES … the decision handed down on 17 October 1995 by the Court of Appeal of Paris and remands the matter to the Court of Appeal of Versailles.

Subsequent Developments

Civ 1, 13/01/1998 (Bull. n° 17) :Authenticity generally constitutes an essential element of a work of art; the purchaser who contracted under the mistaken conviction that the work was authentic can have the sale declared void (Civ.1, 23 February 1970). By requiring that lower courts enquire whether such certainty as to the authentic nature of the coveted work was or was not an essential element, the Cour de Cassation seems to have created a nuance between the essential element of a work of art – its authenticity – and the certainty of the purchaser as to such authenticity, which is decisive as to the nature of such element. Subsequently, this doctrine has been neither reaffirmed nor abandoned by the Cour de Cassation. Reference may be had nevertheless to a decision of the Court of Appeal of Paris in relation to the sale of a painting of Van Gogh. This decision, dated 07 May 2001, seems, at least in appearance, to follow exactly the doctrine laid down by the judgement of 13 January 1998. After having accepted that the certainty that the acquired painting was authentic had led to the purchaser’s acceptance , the decision holds that, in order to have the sale declared void, it is for the purchaser to prove the cogency of the evidence putting the authenticity of the painting in doubt, such proof being incapable of resulting from the sole fact that the painting had become difficult to sell, or even had lost all commercial value. (The Cour de Cassation) criticised the lower courts for having “conditioned the nullification of the sale for mistake upon the roof of the absence of authenticity and not upon a substantial doubt as to authenticity” , the application for review was rejected on the grounds that “the recognition of the existence of substantial doubt as to the authenticity of a work is part of the unfettered power of the lower courts” (Civ.1, 25 May 2004, Bull. No. 152).

In a commentary on the appeal judgement, Delphine Thiel (Petite Affiches, 07 December 2001) notes that it shows “unfailing allegiance to the case law of the Cour de Cassation”, pointing out that the role of the court is to enquire whether the purchaser acquired the picture “because of the certitude of a basic element, its authenticity” and if this element turns out later to be doubtful to the extent that, had he known the areas of doubt at the time of the sale, the purchaser would not have acquired the painting. But in the end it was because this doubt had not been proved that the Court of Appeal rejected the action for nullity. Yet, “if doubt may be deduced from itself, enquiring into the proof of doubt amounts to attempting to verify that it is justified, and therefore to establish what is reality. Therefore, the only arguments which could be allowed as proof of doubt about authenticity would be valid arguments proving the lack of authenticity”. This, however, is very far from the position of the judgement of 13 January 1998. Overall, “the Cour de Cassation has clearly opted in favour of the necessity of protecting consent by admitting that doubt can bring about the nullity of a contract. The Court of Appeal for its part seems far removed from this doctrine and seems to be quicker to want to protect the contract by adding extra conditions to the doctrine of the Cour de Cassation, or even by making it impossible to apply and so annihilating it”. It seems therefore to be necessary to await a further decision of the Cour de Cassation on this question in order to know whether the doctrine arising from the judgement of 13 January 1998 can or cannot be considered as expressly retained. In this respect a judgement dated 19 February 2002 (Civ.1, published, application for review no. 99-14-252) seems to reiterate the grounds of judgement of 13 january 1998 (“having found that the authenticity of the table constituted a substantial element, the Court of Appeal held (…) that M. X… had entered into the contract under the erroneous conviction as to such authenticity of the furniture…”) without however dealing with the question of doubt and the proof thereof before the courts.