Where a careful examination of a painting would have revealed substantial overpainting with forged initials, the buyer of the painting, attributed in the auction catalogue by reference to the initials, was entitled to set aside the sale on the ground that the painting was a forgery.
Mr Justice Morison awarded the plaintiff, Marie Zelinger De Balkany, £557,000 with interest.
In May 1987, the defendant, Christie's, received a painting which, after inspection using an ultra-violet lamp and a magnifying glass and reference to a catalogue entry and an article, was described in its auction catalogue as by Egon Schiele, and as signed by him. The initials E and S appeared on the bottom right- and left-hand corners. In June 1987, the plaintiff bought the painting for the £500,000 reserve price at an auction conducted by Christie's and paid the 10 per cent buyer's premium.
In March 1991, the plaintiff contacted Christie's, alleging the painting was a forgery within Christie's terms and conditions of sale and claiming a refund. Christie's claimed it owed no duty of care to the buyer, the painting was sold "as is" and was correctly described.
Patrick Phillips QC and Lindsay Boswell (Goodman Derrick) for the plaintiff; Anthony Temple QC and Mark Lomas (Reynolds Porter & Chamberlain) for Christie's.
MR JUSTICE MORISON said that under Christie's conditions a buyer had five years to exercise the right to return a forged painting, unless the catalogue description was in accordance with the then accepted opinion of scholars or if only unreasonably expensive, impractical or damaging scientific process would have established the forgery.
It was apparent that at some stage after the painting was first created, a person had extensively overpainted what had been on the canvas. By examining what was below the visible surface by X-rays and infra-red reflectography as enhanced by digital imageprocessing, a monogram, in mauve, with the entwined initials E and S had been found.
On the balance of probabilities, the original painting, of which about 6 per cent was now visible, was by Schiele. On all the evidence, the E and S were painted by someone other than the original artist.
Under Christie's conditions there must be a substantial catalogue misdescription before a lot could be said to be a forgery. What was visible was a picture painted by an unknown person, although it might well follow a composition by Schiele. The overpainter must have intended to deceive the viewer into believing the initials were painted by Schiele. By overpainting the monogram and putting new initials, the overpainter hoped to induce people to believe the whole painting was by Schiele.
By such extensive overpainting, the picture could no longer be legitimately described as by Schiele. It was a forgery within Christie's conditions.
Christie's took the risk of forgery which it could reasonably have detected. Any competent art dealer or auctioneer would have been able to tell that the picture had been substantially overpainted and, when looked at carefully, the initials had been put on by the overpainter. Christie's was not entitled to rely on any exception to liability since the exception only applied when Christie's was reasonably entitled to rely on the opinion of scholars. There would be judgment for the plaintiff for the returnof the money she paid.
Ying Hui Tan, BarristerReuse content