It plainly makes sense for sellers and buyers to get ahead of the curve and finally reach a clear understanding about what is at stake when provenance or related information such as exhibition history is provided. Is the provenance really intended to be a complete chain of title and possession, given that there is no title registry for personal property such as works of art? Is that even possible, given the penchant for anonymity among many wealthy collectors, not to mention the confidentiality of private sales? Further complicating research into ownership is the fact that many art transactions are documented with simple invoices, rather than detailed contracts; often it is unclear from the face of the documents, particularly in multi-party back to back transactions, whether a dealer is acting as a principal or as agent for one of the parties.
In recent years, there has been an increased awareness of the issues surrounding works of art that were stolen, looted, displaced, or illegally exchanged during the Nazi era in Europe (1933-1945). After World War II, Allied Forces recovered thousands of artworks and returned them to the countries from which they were taken for restitution to the owners or their heirs. Nevertheless, many paintings, sculptures, and other objects entered the international art market during the Nazi era. Many of these were acquired in good faith by museums and collectors.
Adding to the seller’s risk is the fact that a claim for breach of warranty does not depend on proof of seller’s negligence or other culpability. Under UCC § 2-714 (2) “[t]he measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.” If the provenance is deemed to be a warranty, and the artwork is less valuable because of an inaccuracy or omission in the provenance, the seller may be liable for that difference in value, regardless of his or her good faith or lack of knowledge of the error in question.
All the paintings appear to have originated with one man, an obscure French collector-turned-dealer named Giulano Ruffini. The works appear to have had next-to-no provenance, save that they came from the collection of French civil engineer André Borie. Ruffini insists he never suggested they were the real deal, and that eager dealers were the ones to declare his paintings Old Master originals.
Jack Flam suggested the paintings be sent for scientific testing to Jamie Martin, one of the world's top forensic art analysts. Martin showed us how he examined one of the fake Robert Motherwells using a stereomicroscope to study every millimeter of the painting's surface, and to select and then remove samples for identification. That's how he detected circular marks in the base layers, indicating an electric sander had been used to remove paint.
In seeking to revoke the sale based on an “incomplete” provenance, the buyer claimed that the provenance constituted a warranty under the Uniform Commercial Code (“UCC”) because it was part of the “basis of the bargain.” Under UCC § 2-313(1)(a), “[a]ny affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.” Section 2-313(1)(b) provides that “[a]ny description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.” It is hard to argue that these sections are not worded broadly enough to encompass the provenance of art work, assuming that provenance was considered part of “the basis of the bargain” when the artwork was sold. The bad news for the seller is that determining whether the provenance was part of “the basis of the bargain” in a given transaction will likely be a question of fact for a jury to decide. That means that, absent precautionary measures such as an express disclaimer as to completeness and accuracy, the question of whether the provenance provided by the seller in an art sale constitutes a warranty will not be decided until after a good deal of expensive litigation. And it is certain that if the provenance is arguably misrepresented or incomplete, the buyer will be able to produce an “expert” to testify about the importance of provenance in the art world, all in support of the buyer’s argument that the given provenance was part of the basis of the bargain.
* Get full names and contact information for all private parties who the seller claims previously owned the art, or other forms of proof that they indeed owned it. Confirm that these people actually exist (or existed) and, when possible, contact them or their descendants directly to confirm all claims. Or have the seller do it for you. Simply being given a list of names with no other accompanying or verifiable information is not enough.
Every work of art carries with it not only the history of its creator, but of its owners as well. Provenance—the record of ownership for a work of art—provides important documentation explaining who, at various points in history, owned the painting, sculpture or artifact at hand. This is an especially important issue for museums, who pay careful attention to provenance to confirm the authenticity of a work of art and its rightful ownership.
Eli Sakhia was a respectable art gallery owner in business for 15 years in Manhattan. He sold privately and to auction houses in the United States and abroad. What he failed to tell his private buyers was that they were buying the forgeries and the auction houses were getting the real works. His modus operandi was to purchase originals, sell them to auction houses, and hire artists in the interim to reproduce fakes for sale to his clients. His problems started when a past buyer of a fake tried to sell his forged piece while Sakhia attempted to sell the original to another auction house. The houses brought in an expert who stated that the past buyer's work was a fake. Sakhia was arrested and convicted; he's expected to serve three to four years in prison (Campanile, 2004).
The victims of art fraud are the artists who own the works, collectors who are defrauded through purchase of forged works, and museums that may use public or donated money to buy fraudulent works of art or works with a falsified provenance. Countries that lose valuable works of art to the international art market under false pretenses are also subject to art fraud.