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Forgeries in the Art Market: best practices for buyers

Pubblicato in Fine Art and Collectors
da Nicoletta Barbaglia
Home > Forgeries in the Art Market: best practices for buyers

It is common knowledge that most of the circulating artworks are actually fakes. A recent example is the exhibition of the Leghorn artist Modigliani at Palazzo Ducale in Genoa, consisting almost entirely of non-authentic works.

To avoid risks, all art collectors (whether occasional buyers or simple enthusiasts) should follow a few basic rules.

WHICH PRECAUTIONS SHOULD BE FOLLOWED WHEN BUYING?

First and foremost, the title of origin of the artwork has to be verified.

It is advisable to:

  • Ask for the provenance invoice (for example from a gallery);
  • Check the inheritance declaration if artworks are indicated as assets; 
  • analysing the declaration of a private individual;
  • or gather anything useful to substantiate how the seller became the owner of the works.

Obtaining documentation attesting to the authenticity or at least the attribution of the artworks would certainly be fundamental, whenever possible. It is mandatory to provide such documentation if the seller is a professional operator in the sector, as stated in Article 64 of the Code of Cultural Heritage and Landscape. Should this documentation be missing, a certificate of authenticity can be demanded from the seller.

THE VALUE AND FUNCTION OF THE CERTIFICATE OF AUTHENTICITY

Authenticity is a highly complex issue.

On the one hand, the market demands certain parties (such as the artist’s heirs, foundations or naturally appointed parties) to proceed with the issue of these authentications ( as the artworks’ value is commensurate with them), and, on the other hand, the Courts most often consider these declarations as mere discretionary opinions.

In a litigation on authenticity, the opinion of the declarant is essentially a simple subjective assessment, albeit accredited. Nor does the artist have a genuine right of authentication over his or her works. 

The history of art is filled with characters who repeatedly changed their stance on creations attributed or attributable to themselves; such as Giorgio De Chirico, the father of metaphysics, or the case of the blank canvases signed by Dali before his death.

ILLICIT ORIGIN AND STOLEN ARTWORKS

Another useful approach when buying a work of art is to verify that the item is not of illicit provenance and/or has been purloined (stolen or disappeared).

This protects the buyer from the risk of any future claim or compensation from third parties who can prove that they are the rightful owners.

The Comando Carabinieri Tutela Patrimonio Culturale has created and publishes special newsletters, which can be freely accessed.

THE PRICE AS A MARKER FOR THE AUTHENTICITY OF A WORK OF ART

The price of the artwork can obviously be one of the indicators of its authenticity. This is certainly not because the lower the price, the better the bargain, but because the lack of congruity between the price and the work, in the art market, can indicate an illicit origin, the need to quickly get rid of the good or, more simply, fakes. Requiring payment in cash (which occurs frequently in less formal art buying and selling contexts) should also raise some doubts as to the transparency of the transaction when dealing with a work of considerable value, signed by an established artist or of a particularly high quality. 

WHAT IF YOU HAVE BOUGHT A FORGERY IN THE ART MARKET?

The law provides solutions for purchasers who have bought fake works of art.

First of all, it is necessary to investigate the seller’s real intentions since the implications may be very different with regard to his liability.

As far as Italian civil law is concerned, if the seller sold a work as authentic knowing it to be a forgery, the buyer could invoke the institution of aliud pro alio. The buyer has unwittingly acquired one thing for another and may therefore request rescission of the contract for the seller’s breach. The time limit for suing is 10 years.

On the contrary, in the event that the seller has only assumed the authenticity of the work, subsequently revealed to be a forgery, the buyer may pursue annulment for defect of consent, within five years from the identification of the mistake.

In aliud pro alio, the purchaser may claim restitution of the price paid (plus damages) or compensation for the value that the work would have had if it had been truly authentic. Whereas in case of defect of consent, the buyer may only ask for the refund of the price and any extra costs related to the sale. 

FORGERY IN THE CONTEMPORARY ART MARKET

The figures show an upward trend of forgeries in the art market, mainly from the modern/contemporary period, as they are in greater demand and easier to counterfeit. 

Consider just how easy it is to find the modern pigments, compared to those used in past centuries, completely plant-based, which, upon expert examination based on chemical analysis, would immediately reveal themselves to be inappropriate for works of fine art. Today, modern technologies for studying and examining works of art are in fact cutting-edge, non-invasive and helpful in verifying authenticity. Nevertheless, to counterfeit certain works, it is necessary to be very skilled, almost like a real artist.

An example of this is the negligent gallery that relied recklessly on a supplier/forger and unknowingly sold counterfeit works to its collectors. On top of that, they had to be located and reported to the authorities, the catalogues were tainted, the prices paid for the works were completely unfair, and the buyers sustained damages…

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Publication date: 26 June 2019
Last update: 26 April 2022

Avv. Nicoletta Barbaglia

Of Counsel dello studio legale Canella Camaiora, iscritta all’Ordine degli Avvocati di Milano, si occupa di Contenzioso Civile ed è appassionata di Diritto dell’Arte
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