Introduction
Frans Hals was a mildly successful seventeenth-century Dutch old master who specialised in portraits. Few of his works have persisted in popular cultural consciousness in the intervening 400 years. One exception is the Laughing Cavalier, painted in 1624, which remains on display in the Wallace Collection in London. The Laughing Cavalier was once described by the Harvard art historian Seymour Slive as ‘one of the most brilliant of all Baroque portraits’.[1] But interest in Hals’ work since has been limited mostly to fine art specialists and investors.[2] This year saw the fruits of that interest in a claim against the auction house Sotheby’s. The subject matter was Hals’ Portrait of a Gentleman, half-length, wearing Black, believed to have been painted around 1650. It is a rather boring work. The subject matter is a grim, wealthy Dutch aristocrat, whose only redeeming aesthetic quality seems to be the fine robe he can afford. Beyond that there is little to spark one’s interest. But luckily the artwork has generated an interesting case, engaging, in an art law context, principles of agency, partnership, witnesses of fact, and contractual construction of state of scholarship clauses. The case also provides a key moment to re-evaluate whether there are any unique or common principles which animate this area of the law. I argue that there are such principles in the final section. First, however, it is necessary to begin with the historical context of Mark Weiss and auction house claims more broadly.
Historic auction house claims
The vast majority of claims before English courts against auction houses have taken place in the last 30 years.[3] This has corresponded with the growing commercialisation of the fine art market internationally. In the 1990s there was a movement from the culture of gentlemanly handshakes to one of increasing legal formalisation. Martin Wilson, previously Co-Head of Legal and Compliance at Christie’s, noted that in 1998 Christie’s had only three people working in its legal department. ‘By the time I left Christie’s in 2017’, he recently wrote, ‘the legal department numbered 40 employees’.[4]
Since the mid-1990s, claims against auction houses have involved mixed allegations of breach of contract and tort.[5] A useful mixed example is the 1995 case of De Balkany v Christie Manson and Woods.[6] This case was about a work by Egon Schiele, an Austrian Expressionist protégé of Gustav Klimt, purchased in 1987 for the reserve sale price of £500,000 plus the hammer price and buyer’s premium. By 1991 the buyer believed that it was a forgery, and contacted Christie’s requesting a refund. Christie’s’ terms and conditions generally excluded liability. There was only a limited right to obtain a refund if the item was a forgery, defined with the classic term of being a piece created with an ‘intention to deceive as to authorship, origin, date, age, period, culture, or source’. But that right was further limited by the requirement that, if the sale had been in line with general scholarship at the time of sale, no refund would be possible. Christie’s argued that there had not been an intention to deceive, nor was it contrary to the state of scholarship when sold.