Art Experts: Recognised skills yet a risky profession

Karine D’ORIA, Avocat Of Counsel, SMITH D’ORIA

Paris, June 8th, saw the opening of the inaugural national conferences of expertise, organised at the Petit Palais by the National Organisation of Art Experts, which took as its theme “Can the art market do without art experts?

This question, somewhat mischievous, moves us to consider the very notion of the art expert and forces a reflection on the risks inherent to the profession and its practice in an increasingly competitive art market in which enormous sums of money are at play and ever more pressure is placed on these experts.

The dictionary definition of an expert is “an individual whose profession involves assessing the value of an object, the cost if it were to be damaged, etc., or attesting to the authenticity of works of art.

According to Professor Françoise Labarthe, “it is possible to define the authenticity of a work as the certainty, confirmed at a given moment, in respect of its origins, subject to the contingencies of time, knowledge and technique.” Rec. Dalloz, 15 mai 2014, n°18, Etudes et commentaires, Chroniques, Fraude et falsification, « Dire l’authenticité d’une oeuvre d’art ».

Art experts can work freelance or they may be employees, as is the case for those independent experts who work exclusively for British or American auction houses, such as Sotheby’s and Christie’s.

Independent experts are free to provide their services to all sellers (auctioneers) and/or work as judicial art experts and appraisers at the Customs Arbitration and Advisory Committee, subject to certain conditions.

The areas in which independent experts work are varied. Generalists, who may nonetheless still specialise in one or two areas, will possess large fields of expertise (“contemporary art”, “eighteenth century furniture”), while others may be recognised as specialists in the work of particular artists or even a single artist.

As far back as 1999, the Senator Yann Gaillard pointed out the difficulties inherent to the work of independent art experts. One of the great advantages held by large British and American auction houses — indeed, one of their own innovations that predates even the Second World War — is their ability to seek the services of art historians who, as independent experts, are not constrained in the same way as their directly employed counterparts, who are potentially subject to workplace pressures imposed by the employer.

However, as Senator Gaillard highlighted, there are two contradictions that must be considered:

  • On the one hand, we see that the art expertise market is divided between numerous parties with the consequence that remuneration for the independent experts is inadequate, meaning they are often forced to provide their services free of charge, as dealers, gallery owners or antique dealers, all of which gives rise to the potential for conflicts of interest when acting as brokers or middlemen.
  • At the same time, the customer must be able to have a certain level of trust in the
  • independent experts, which has led to the experts organizing themselves into professional associations, in accordance with the conditions placed on them by the French Competition Council in 1998, a decision subsequently confirmed by the Paris Court of Appeal.3 In this decision, the four major professional groups were ordered to pay a total fine of 286,000 francs on the grounds that, on the one hand, while co-opting may not in itself be anti-competitive behaviour, it may still “have the effect of inhibiting competition between experts when combined with other features, such as patronage and the lack of any incentive to refuse the work”. Likewise, the wider application of fee schedules, which may seem to be a way of protecting customers — once the four organisations adopt different scales — has been considered to go against the normal functioning of market, to such an extent that it could have the effect of “preventing companies from properly considering their costs”.

Freelance art experts are organised into four principle chambers:

  • The National Chamber of Art Experts (CNE), founded in 1971, which boasts 155 experts whose specialities include antiques, paintings, books, curiosities and artworks from all periods. In order to be admitted, the experts must demonstrate at least 10 years of actual and continuous activity in the profession, with a maximum of two areas of expertise. They must also be able to demonstrate that they have the recognition of their peers, possess their fully civil and political rights, and do not possess any criminal convictions;
  • The National Chamber of Experts in Art and Collectables (CNES), founded in 1967, which has 152 members, experts who have been selected by way of a specific examination, and who have — like those members of the CNE — at least 10 years of professional experience; 75 “Student Experts”; 40 honorary members; 44 correspondent members; and 3 correspondent members and 2 overseas offices. At a national level, CNES is organised into 9 regions, each presided over by its own president;
  • The French Union of Professional Experts in Art and Collectables (SFEP). Founded in 1945, it is oldest of the organisations representing the profession and counts 115 experts among its members, spanning 42 areas of expertise. Those seeking membership must, notably, be at least 30 years old and be able to demonstrate at least 5 years of professional experience; and
  • The French Union of Professional Experts in Antiques and Art (UFE), founded at the end of the 1970s, boasts more 120 members whose admission depends on them producing a paper and passing an exam proving their knowledge, along with having their application for membership sponsored by at least one member, who will vouch for the candidate.

CNE, CNES and SFEP are authorised to nominate candidates for the available assessor roles on theCustoms Arbitration and Advisory Committee.

In 1988, CNES and SFEP jointly founded the European Confederation of Art Experts (CEDEA). In 1993, they were joined by the Belgian Chamber of Art Experts (CBEOA), by the Chamber for Expertise in Art and Antiques (CEA) in 2010 and, in 2011, by the National Federation for Professional Art Experts (FNEPSA). CEDEA, which thus boasts more than 480 experts, developed a Code of Ethics for the profession, which was approved by its executive board in 1994.

Having sketched out the professional landscape, what, then, are the risks inherent to the work undertaken by art experts?

We have seen that, where experts are retained as employees, such as in the British and American auction houses, they are, by definition, subject to the supervision and control of their employer and are therefore potentially exposed to pressures imposed by the employer. Their employment contracts do, however, offer protection towards both buyers and dealers, shielding the experts from the risk of action arising out of an error committed in the course of their work, whether it is an error in assessing an object’s market value or in respect of its authenticity: it is the principal (here, the employer) who is responsible for any loss caused by their agents in the course of the their employment.5 Since liability is strict, the auction houses cannot avoid liability by showing that they were not at fault. In any case, the names of the experts who have produced descriptions of the objects being auctioned are omitted from auction catalogues.

The independent nature of the profession means that it subsumes many different realities. The profession includes assessors at the Customs Arbitration and Advisory Committee; antique specialists; auctioneers; in some cases, experts appointed to assist the Court of Cassation or the Court of Appeal; experts working in independent or judicial auction houses; experts working for insurance companies; specialists in the work of a particular artist, who may be considered the sole person qualified to proclaim whether a work is really that of a deceased artist…

Antique dealers, gallery owners, auctioneers or occasional sellers who have been brought in to offer their opinion on the authenticity of a work are subject to the provisions of Article 1 of Decree n°81–255 1 of March 3rd 1981, the so-called “Marcus Decree”, modified by Decree n°2001–650 of July 19th 2001, which states that:

  • “Dealers or occasional sellers of art or collectable items or agents thereof, along with public or ministerial officials and persons authorised to oversee public auctions must, if requested by the buyer, provide an invoice, receipt, sales slip or an extract of the minutes from the public sale, in which are contained information relating to the nature, composition, origin and age of the item sold.”

As such, all those who claim, whether on an occasional or regular basis, to be art experts — that is, to advise on the nature, composition, origin or age, or to estimate the value of an object by stating a price — face the risk of incurring personal liability.

Liability may be contractual, civil or tortious, depending on the scope of the expert’s obligations and the context in which the services are provided. Contractual liability will arise due to the failure to fulfil contractual obligations or for a breach of a contractual term. Civil or tortious liability may arise without there being a contract: “Any action by person, which causes a loss to another, obliges the party at fault to remedy the loss”.7 If the action that causes the loss is intentional — that is, committed with a view to causing damage — it will be a criminal offence; where it is the result of negligence or lack of care, the act will be tortious.

It is useful to distinguish those situations where an independent expert is providing services outside of the context of public auctions — where the expert will provide a certificate attesting to an object’s authenticity — from those cases where the expert deals directly with the auction house and auctioneer directly.

Whether a generalist or a specialist, an expert who provides services in respect of a private sale — as opposed to a sale by auction– may incur contractual liability towards any party that seeks a certificate attesting to the authenticity of an object, whether they are dealers, art enthusiasts, collectors or professionals.

On the other hand, civil or tortious liability could be incurred towards any third party that acquires an object and, in doing so, relies on either a certificate of authenticity that has been procured by the seller or anyone else, or relies on the sale catalogue for the auction in which the work is to be sold. In such circumstances, the expert can incur liability towards future purchasers of the object. On this matter, the Paris Court of Appeal has ruled that “having been responsible for the erroneous belief in the authenticity of the painting, the expert (had) by default deceived subsequent purchasers as to the substantial qualities of the sale object.”

Traditionally, in private sales, jurisprudence has treated the expert as owing an obligation of means rather than one of result. Determining which cabinetmaker was responsible for a particular item or which artist produced a certain painting depends on information that may not necessarily be available to the expert. Similarly, a simple opinion will not give rise to liability: the expert must have been charged with completing a full appraisal of the object and have subsequently issued a certificate of authenticity.

As stated, the work of the experts is not regulated. Accordingly, judges must assess on a case-by-case basis whether an expert has completed his role with the level of care and skill expected of a professional art expert. It is not so much the outcome that matters, but how the expert has arrived at their conclusion.

On the matter of reasonable care and skill, jurisprudence is plentiful, setting out criteria that go beyond the legislation. As such, any examination undertaken by an expert must be completed meticulously. They are expected to consult relevant reference books: a case in which a sketch was mistakenly identified as a Rembrandt, the Paris Court of Appeal held that the expert ought to have consulted the work of Otto Benesch, “the most reliable to have been published on the subject at the time”. The expert is also expected to seek the opinion of those considered specialists in the work of the artist in question. In a case where the work was possibly that of Gauguin, the Paris High Court criticised the expert for having “failed to verify whether the work was catalogued by the Wildenstein Institute, when a body of such competence and authority on the work of Gauguin could not be ignored”. The institute had that same year published a comprehensive catalogue of the painter’s work, which excluded the canvas in question.

In the last twenty years, courts have hardened their positions, tending to impose a results-based obligation on experts. Thus, in a landmark case, 7 November 1995, which has been affirmed subsequently, the Court of Cassation, referring to Articles 1147 and 1110 of the French Civil Code, quashed the decision of the Paris Appeal Court of 19 November 1992 on the grounds that, “the sale without any reservation of a work of art bearing a signature constitutes a statement of its authenticity, regardless of any contractual uncertainty on the matter” and, further, that “any expert who attests to the authenticity of a work without attaching any reservations engages his liability in respect of that attestation”.

This jurisprudence particularly affects independent experts who provide their services to auction houses, assessing objects that are to be sold by auction and producing descriptions for sale catalogues, in addition to auctioneers themselves.

Those experts working at public auctions are self-employed, operating either in an individual capacity or representing a consulting firm, or as an art or antiques dealer.

Pursuant to the provisions of Article L.321–29 of the French Commercial Code, “auction house operators, as identified in Article L.31–24, court huissiers and notaries may seek the assistance of experts of any kind, in order to assist with the description, presentation and estimation of goods which are to be sold. The public is to be informed of the role of such experts in the organisation of the sale in question.

And according to Article L.321–30 of the same code, “any expert receiving payment for services relating to the voluntary sale of chattels by public auction is required to hold professional indemnity insurance. They will be jointly and severally liable with the auctioneer for all consequences arising from the activities in question. All information relating to the guarantee referred to in the first paragraph will be made available to the public.

Consequently, independent experts are jointly and severally liable with the auction organiser for any consequences arising from the activities of the expert in respect of assessments or valuations of objects sold at auction. According to the provisions of Article L.321–17 of the French Commercial Code, the expert cannot be exempted from liability, with clauses excluding or limiting their liability being prohibited and deemed null and void. It is for this reason that Article L.321–30 requires experts to have professional indemnity insurance.

For reasons of solidarity, the auctioneer — or auction house — is held to be liable to third parties for any convictions of the expert in respect of his work for their auction sale, even where the auctioneer or auction house is not at fault. However, these parties benefit from the right to bring a claim in subrogation against the expert to recover the part of the loss for which the expert is responsible. That part not will not necessarily be half of the sum owed, the court being free to determine the respective shares of the expert and auction operator.

Whether a private sale or a sale by public auction, the burden of responsibility borne by the art expert is an increasingly heavy one. Given that they work in an area replete with speculation, where, for many wealthy, fussy and discerning collectors an artwork is more an investment than an object of pleasure, the remuneration received by experts appears modest, especially considering the burden of responsibility that they bear.

And what about the incoherence in French law over what time limit applies in respect of action brought against experts?

Independent experts providing services to public auctions are liable for five years from the date of the object’s sale or from the point when the chattel’s value is estimated, whereas experts whose services are sought for the purposes of a private sale are likely to be liable for twenty years from the date the dispute is discovered…

Whether employed by a British or American auction house or working in an independent capacity, the expert remains an essential actor in the art market. As such, action addressing legal uncertainties that currently exist in the area is highly desirable, most notably defining the status of an “expert in art and collectables”, creating a clear legal framework for the profession, and standardizing the time period for which experts can be held liable for the consequences of their assessments.