UK: Caravaggio In Court: Auction Houses, Duty Of Care And Breach Of Contract

Last Updated: 10 March 2015
Article by Rudy Capildeo and Elizabeth McClenan

In Thwaytes v Sotheby's [2015] EWHC 36 (Ch) the High Court found that Sotheby's had not been negligent in auctioning a painting as a copy, rather than as an original Caravaggio. Sotheby's was entitled to rely on its own expertise and connoisseurship, and to assess the painting first and foremost on its quality.


The Claimant had owned a painting which was of the same scene as a painting by Caravaggio known as 'The Cardsharps'. In 2006 the Claimant instructed Sotheby's to examine the painting in order to determine whether the Claimant's painting was a copy, or whether it was an early work by Caravaggio himself.

Sotheby's experts examined the painting using ultra-violet light and x-ray imaging, and all agreed that it was a copy, probably by a follower of Caravaggio. The Claimant asked that the painting be auctioned by Sotheby's, where it sold at a hammer price of £42,000.

The buyer, a renowned art scholar and Caravaggio specialist, subsequently carried out his own tests and examinations. The following year the buyer announced that the painting was an original work by Caravaggio himself with an estimated value of £10 million.

The Claimant issued proceedings against Sotheby's in negligence and breach of contract.

The Dispute

The Claimant contended that Sotheby's:

i) had been wrong in its approach, namely to have assessed the painting solely in terms of its artistic quality;

ii) had failed to notice certain features of the painting which should have alerted them to the fact that it had potential to be a Caravaggio; and

iii) had been negligent in failing to inform the claimant of the high level of interest that had been shown in the painting prior to the auction.

The claimant alleged that if Sotheby's had performed its duties towards him properly, he could either have sold the painting for a much greater sum, or retained it himself at a much higher value than he had originally paid for it. The claimant further contended that the scope of Sotheby's duty of care was extended on the basis that the claimant had initially asked Sotheby's to research the painting. The claimant argued that this meant that Sotheby's was on special enquiry as to the quality and importance of the painting.

The claim was dismissed.

Duty of Care

The court held that the duty undertaken by Sotheby's when the painting was consigned to it was the duty that arose generally when an item was consigned to a leading international auction house. There were no special features in this case which extended the duty or made it more onerous.

Those who consigned their works to a leading auction house could expect that they would be assessed by highly qualified people who had access to the expert opinions of art scholars at the highest levels in the world. A leading auction house had to give the work consigned to it a proper examination, devoting enough time to it to arrive at a firm view where possible. The principle that an art expert must know his limitations and when to request the opinion of other experts applied as much to a leading auction house as it did to a provincial auction house, though the bar for this would be set at a much higher threshold in the case of a leading auction house like Sotheby's.

Assessment of the Painting

Sotheby's was entitled to rely on its own expertise and connoisseurship and to approach the painting first and foremost on its quality. There was nothing on visual examination which should have contradicted Sotheby's view that the painting was of poorer quality than the undisputed version of The Cardsharps accepted worldwide as having been painted by Caravaggio.

Sotheby's had been aware of the high level of interest shown in the painting and the day before the auction had called a further meeting of its experts (the 'Olympia' meeting) to review their findings. The experts again unanimously considered that the painting was a copy. The court found that, as with the initial assessment, there was nothing visible at the Olympia meeting that should have caused the experts to question their opinion based on the painting's quality.

The court found that Sotheby's had been entitled to rely on its specialists to examine the x-rays of the painting and that Sotheby's was under no obligation to carry out infra-red analysis of the painting. Even if infra-red analysis had been carried out, it would not have shown anything to indicate that the painting may have been an original Caravaggio.

If Sotheby's had sought an external expert opinion, it was likely that the eventual buyer would have been the scholar consulted and that he would have given his opinion that the painting was original. However, his opinion would not have altered the opinion of Sotheby's experts, and the painting would still have been auctioned as a copy, albeit with a note in the catalogue referencing the positive attribution of that scholar.

Finally, the court found it was implausible that the claimant would have withdrawn the painting from sale had he known of the Olympia meeting, and determined that that this contention was affected by the benefit of hindsight.


This case confirms established law regarding the scope of the duty of care owed by auction houses to those who consign their works to them. The court's findings affirm the decision in Luxmoore-May and Another v Messenger May Baverstock [1990] 1 WLR 1009, namely that the duty of care owed by a leading auction house will be greater than that owed by a provincial auction house which generally cannot be expected to have access to the same expertise and scholarly opinion.

It is worth noting that scholars remain divided on whether the painting in question is a Caravaggio, though it remains insured for £10 million. The message is therefore clear – those who suspect they have something special to sell at auction should obtain the expert opinion of specialists to avoid any unpleasant surprises.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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