United States: A Seller Should Have Reasonable Grounds For His Unqualified Authenticity Opinion. But How To Weigh Negative Facts? And Must These Negative Facts Be Disclosed If They Are Unknown To Buyer?

Last Updated: October 27 2013
Article by Ronald D. Spencer

This essay examines whether a seller has reasonable grounds for his authenticity opinion – given that relevant factual grounds do not always point in one direction and, indeed, some may be strongly negative. Of course, in arriving at his opinion, the seller must balance these positive and negative facts while lending more or less weight to each. But does an opinion based on such "mixed" facts need to be formally qualified as "probably" or "likely". And, having reasonably arrived at an unqualified opinion, must the seller disclose the negative facts he considered (and, on balance, presumably found unconvincing). — RDS

● ● ●

RONALD D. SPENCER is Chairman of the Art Law Practice at the New York law firm of Carter Ledyard & Milburn LLP. He is expert in the legal aspects of art authentication issues and has written and edited, The Expert Versus the Object: Judging Fakes and False Attributions in the Visual Arts, (Oxford University Press, 2004).

● ● ●

An English Court Decides That A Seller Had Reasonable Grounds For Its Authenticity Opinion

In 2005 an English Court of Appeal decided Taylor Lynne Thomson v. Christie's,1 involving a 1994 London auction sale to Thomson, for almost £2 million, of a pair of Louis XV porphyry and gilt-bronze two handled vases. In 1998 some art dealers suggested to her that the vases might not be Louis XV, but high quality imitations (not forgeries) made in the mid-19th century worth no more than £25,000. Thomson brought an action against Christie's on the ground that the vases were made in the 19th century, claiming that Christie's owed her a duty of care which they had broken in not warning her of a risk that Christie's judgment that the vases were made in the 18th century might be questionable or wrong.

Thomson said that Christie's should have qualified their sale catalogue for the vases to describe them as "probably Louis XV" or a similar qualification because, at the 1994 sale date, there were facts known to Christie's which should have led Christie's to be cautious about their dating of the vases. Thus, in addition to the existence of the 19th century imitations, (Thomson testified that she would not have bought the vases had Christie's told her of the existence of the 19th imitations) there was an absence of any provenance prior to a 1921 purchase by the grandmother of the seller, Lord Cholmondeley. As well, Christie's had relied for its opinion that the vases were made in the 18th century upon the exercise of their judgment, based on only a visual inspection, that is, without any physical analysis of the materials utilized in the vases.

The Court of Appeal noted:

. . . Christie's do[es] accept that, if there is material doubt as to the description or dating of a work of art offered for sale at auction, good auctioneering practice requires the auctioneer to articulate the doubt in suitable terms, for example, "probably Louis XV".2

. . . It is difficult to define the degree of certainty which an auctioneer should have before he ascribes a date without qualification, and it is probably unnecessary for me to try to do so. It may be whether, having reviewed all factors, he finds he has sufficient positive basis for the view he has formed combined with the absence of matters which raise real rather than fanciful doubt by pointing the other way.

The trial judge had found "on the strong balance of probability" that the vases (sometimes referred to as the Houghton urns) were made in the 18th century, and the Court of Appeal upheld the trial judge's decision.

The Court of Appeal seemed to accept Christie's submissions that:

1. The existence of a 19th century revivalist fashion was a reason for caution, but not a reason for doubt.

2. It is obvious to any buyer, whether expert or not, that attributions as to date are matters of opinion and judgment.

3. Christie's could only have a duty to disclose matters which Christie's knew or should have known and which would have materially affected their confidence in their own opinion.

The Thomson trial court judge was quoted with approval in a subsequent case, Avrora Fine Arts v. Christie's,4 which neatly summed up the Thomson core issue:

The representation is not simply that the urns were Louis XV because that is a matter of opinion. The representation is that was Christie's opinion and that Christie's had reasonable grounds for that opinion.

The Court of Appeal thus decided that Christie's had reasonable grounds for its opinion that the vases were made in the 18th century (about 1765) and therefore Christie's was correct to describe them in its sale catalogue without any qualification such as "probably 18th century".

I cannot be certain that the Houghton urns were made around 1760 to 1765, but I think it likely. The evidence establishes the position somewhere between certainty and more likely than not. If a figure must be placed on it, I would put it in the region of 70%.5

And further, said the Court of Appeal:

... Christie's at the time of the sale ... were reasonably entitled to hold, the certain and definite opinion that the Houghton vases were 18th century and correctly described without qualification as "Louis XV"; that there were no real rather than fanciful doubts pointing the other way, and that Ms. Thomson's eleven reasons did not raise any real doubts.6

Degree Of Certainty Required For An Unqualified Authenticity Opinion

Thomson is one of the few court decisions to examine in depth the degree of certainty required of experts before they render an unqualified opinion on authenticity. Thomson expressed this in terms lack of "material doubt" concerning the description of a work of art, reviewing "all factors" and finding a "sufficient positive basis . . . combined with the absence of matters which raise real rather than fanciful doubt by pointing the other way." Of course, this is rather a common sense and familiar way of arriving at opinions on most issues. And, in Thomson, a 70% to 80% likelihood allowed Christie's to avoid the qualifier, "probably". But, of course, a 20% to 30% chance of being wrong is a significant risk for a buyer, and, in effect, allows for the existence of a fair number and weight of factors which would not support or, indeed, be contrary to, a positive expert opinion.

These kinds of odds of being wrong (say, one chance in four or five) bring to mind the New York case, Dawson v. Malina7, in which a federal district court in New York considered the standard to be applied in determining whether a seller's warranty of Chinese ceramics as being from a certain historical period had been breached by the seller. The buyer plaintiff argued for a standard that would require the seller to establish by a preponderance of the evidence (the usual evidentiary rule in civil matters) the art was unqualifiedly of the period to which they were attributed by the seller. The seller argued for a standard that would require the buyer to conclusively establish, by a preponderance of the evidence, the art was not of the period. The Dawson court thought it would be "unjust for the Court to adopt the strict standard proposed by the buyer. Instead, the court adopted a "middle ground", to wit,

Whether plaintiff Dawson has established by a fair preponderance of the evidence that the representations made by [seller] Malina were without a reasonable basis in fact at the time the representations were made.

This Dawson formulation of the standard required to prove a breach of warranty of authenticity is similar to the Thomson analysis because both formulations allow for an unqualified opinion about, or representation of, authenticity even though all of the factual elements upon which the opinion is based do not necessarily support the expert's opinion/representation, and, indeed, some might be contrary to the opinion.

Duty To Disclose Doubts Or Negative Information

An additional, and quite interesting, aspect of Thomson is Christie's duty to disclose facts which it knew or should have known and which would have materially affected Christie's confidence in their own opinion. Thomson's main argument advanced at trial was that the vases were 19th century, although "it shaded off on occasions towards a case that there were material doubts whether the vases were truly 18th century"8 so that even if Thomson could not establish that the vases were made in the 19th century, there were numerous features about the vases which raised doubts about their true origin, history and age, such that Christie's had a duty to disclose these doubts. In effect, even though Christie's was not obliged to qualify its sales catalogue description by the use of the word, "probably", Christie's nevertheless had a legal duty to disclose facts that did not support its opinion or raised doubts about the grounds for its opinion.

These doubts, as noted above, were chiefly the following three:

1. There existed no provenance prior to the 1921 purchase in France by the grandmother of Christie's auction seller, Lord Cholmondeley,

2. Christie's was relying very largely upon the exercise of its judgment following (only a) visual inspection, and

3. The existence of 19th century imitations.

With respect to provenance, the Court of Appeal noted that the Getty Museum had a similar pair of urns with little or no provenance information, but a Getty Curator of Decorative Arts with an excellent reputation had described the Getty urns as circa 1765-1770. The Court of Appeal stated:

Absence of provenance before 1921 was a reason for caution. It was surprising that there was no secure earlier record of any of the 6 [similar] vases in either the 18th or 19th century, if they were indeed 18th century. But there was evidence of securely dated 18th century pieces which had no real provenance – it applied to 117 of the 214 French decorative objects in the Getty Summary Catalogue of 1993.9

With respect the "doubt" arising about the visual inspection by Christie's, that is, without any material analysis such as metallurgical evidence of the bronze lion-head mounts and their gilding, or the porphyry stone, the Court stated that Christie's reliance upon visual inspection "was well understood and there was "no evidence or probability that Ms. Thomson was so naïve that she needed to have this commonplace point made to her."10 And, finally, the Court states:

The [trial] judge's findings as to the date when the vases were made took account of extensive metallurgical and other scientific evidence put together for the purpose of these proceedings. Ms. Thomson does not suggest that Christie's should have acquired information of this kind before the auction. It is not relevant to any question whether Christie's were in breach of duty.11

With respect to the existence of 19th century copies or imitations as a result of a 19th century revivalist fashion, the Court agreed with Christie's that:

the possible existence of 19th century imitations was a reason for care, but did not in the case of the Houghton vases raise a real, rather than fanciful doubt. Christie's was not obliged to express fanciful doubts to Ms. Thomson.12

The Thomson Court standard for (negative) factual information that the seller had a duty to disclose was that "real", as opposed to "fanciful" doubts had to be disclosed. Fanciful doubts suggested only a need for "caution"

on Christie's part in describing the urns, but did not require Christie's to disclose such fanciful doubts. The above-noted three items of (negative) factual information (imitations, visual inspection and provenance) contributing to "doubt" are information which reasonable due diligence by the buyer could or should have discovered and therefore, did not have to be disclosed by Christie's.

Thus, Thomson stands for the somewhat surprising proposition that, even if a seller's authenticity representation is properly made, any material negative information known to seller, which buyer's due diligence could not reasonably have discovered, must be disclosed as well.

Can The Seller Remain Silent? That Is, Must All Relevant Negative Facts Be Disclosed?

Many court decisions and tort treatises state that there is "no affirmative duty of disclosure between parties dealing at arm's length." Silence, as such, i.e., mere nondisclosure, does not constitute a breach of duty.13 The harshness of this rule has been mitigated by limitations and exceptions that have gone a long way toward swallowing up the rule – but not yet all the way.14 One important exception (the so-called "special facts" doctrine) to this rule is where the seller has superior information, not reasonably available to the buyer.15

It may be helpful in this regard not to generalize about the vendor-purchaser relation. There would seem to be a distinction between the relationship, on the one hand, of two experienced business men, consummating a sale and purchase and the relationship, on the other, of salesman and customer in a large retail store. To the former, the description "arm's length" seems to be appropriate, and there is little ground for reliance, except to the extent of warranties and of unequivocal representations of fact. But in the latter, it may be doubted whether it is ever possible for the parties to achieve equality of knowledge. And while the customer may be held to act at his peril in relying on statements which he should recognize to be customary "sales talk," it can be argued that he relies, and justifiably so, on the sales person not to remain silent as to material facts of which he knows the purchaser is ignorant.16

An important point is the degree of "difficulty", shading sometimes toward impossibility, of the buyer's discovering the negative information for himself. That is to say, should the duty of discovery be placed on the buyer who could presumably learn of the defect or negative information if he were more diligent or commissioned a thorough expert investigation.17 An art dealer (an "art merchant" in Uniform Commercial Code terms) selling to a non-dealer collector will usually, but not always, have more general art-related knowledge than the collector and almost always more knowledge about the specific piece being sold. On the other hand, collectors contemplating the purchase of high end art often retain expert art advisors to assist in purchasing from the art merchant in an effort to narrow this dealer-collector knowledge gap.

Another important point concerning the rule of non-liability for "mere nondisclosure" is the nature and importance of the undisclosed negative information.

The second Restatement of Torts has tried to formulate a rule embodying this trend [mandating more disclosure] by requiring one party to a business transaction to disclose to the other, before the transaction is consummated, "facts basic to the transaction" if the former knows that the other is about to act under a mistake as to such facts "and that the other, because of the relationship between them, the customs of the trade or other objective circumstances, would reasonably expect a disclosure of those facts." Facts "basic to the transaction18 are those that go to its essence (for example, the character of the thing sold), and the concept is narrower than materiality, which covers also facts that are important only as "inducements to enter into" the transaction.19

In the context of the sale of a painting or sculpture, one might well doubt, for example, that seller's failure to disclose a lack of a listing in a catalogue raisonné or a lack of a complete and accurate provenance of the piece would qualify as "basic to the transaction", as opposed to being material facts, important only as "inducements to enter into" the transaction.

A Dealer Meeting His Contractual Warranty Standard – Having A Reasonable Basis In Fact – Should Not Have A Duty To Meet A Higher Tort Standard – Disclosing All Material Negative Facts

The Dawson decision described above establishes the standard an art buyer must meet in order to rescind his purchase based on the claimed breach of the dealer warranty of authenticity – that is, at the time of sale, the dealer did not have a reasonable basis in fact, for the dealer's representation. By way of example, a "reasonable basis in fact" might consist of ten factual elements, eight of which support authenticity more or less strongly, while two factual elements are negative. Dawson suggests that, so long as seller has been reasonable in taking into account the nature and weight of the two negative elements, the seller has not breached his representation of authenticity.

By contrast with this contractual obligation under a warranty, if the dealer also has a tort law duty to disclose the two negative elements and does not do so, the dealer's mere non-disclosure or silence would be a tort, and entitle the buyer to rescission or damages for misrepresentation. But to hold the dealer liable in tort would undermine the Dawson contractual warranty standard the dealer was able to meet. In short, requiring disclosure of negative material facts which are not "basic to the transaction" would allow rescission of the sale where the dealer had met his burden under his contractual warranty. This does not appear to be a sensible result.


1 2005 EWCA Civ. 555; Case no. A2/2004/146 & 1470.

2 Court of Appeal, para. 73.

3 Court of Appeal, para. 74.

4 2012 WL 2923015 at page 22.

5 Court of Appeal, para. 71, quoting the trial judge approvingly.

6 Para. 78 Court of Appeal.

7 463 F. Supp. 461 (S.D.N.Y. 1978).

8 Para. 93 Court of Appeal.

9 Court of Appeal, para. 46.

10 Court of Appeal, para. 16.

11 Court of Appeal, para. 8.

12 Court of Appeal, para. 85.

13 Vol. 2 Harper, James & Gray On Torts, Section 7.14 (3rd ed. 2006).

14 Harper, James & Gray, page 556.

15 Under the "special facts" doctrine, a duty to disclose arises 'where one party's superior knowledge of essential facts renders a transaction without disclosure inherently unfair'. Beneficial Commercial Corp. v. Glick Datsun, 601 F. Supp. 773

(S.D.N.Y. 1985); But see Chiarella v. U.S., 445 U.S. 222, 248 (1980) (stating "This Court has never so held."). It is curious that, while some courts have applied the special facts doctrine to impose a duty of disclosure on the seller, no corresponding duty is usually placed on the buyer where the buyer has knowledge of facts, not reasonably discoverable by the seller, which render the property much more valuable than the price being asked.

16 Goldfarb, Fraud and Nondisclosure in the Vendor-Purchaser Relation, 8 W. Res. L. Rev. 5, 43-44 (1956).

17 Goldfarb, page 19.

18 Restatement (Second) of Torts §551, Comment j (1977). The Reporter stated that the advisers were unanimous in wishing to limit [§551(2)(e)] to (facts 'basic to the transaction') and concluded, [t]he law may be moving in the direction of requiring disclosure of ('material' facts) but it is not yet sufficiently clear to justify more than 'basic.' Restatement (Second) of Torts §551, at 166-167 (Tent. Draft No. 10, 1964).

19 Harper, James & Gray, Section 7.14, pages 565-566.

Originally published in Spencer's Art Law Journal - Vol. 4, No. 2 FALL 2013

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions