Case:
Cour de cassation, Première Chambre civile, 16 April 1991 Bull. civ. I, no. 145 Case Mme Gans v. M. Daber
Date:
16 April 1991
Note:
Translated French Cases and Materials under the direction of Professor B. Markesinis and M. le Conseiller Dominique Hascher
Translated by:
Tony Weir
Copyright:
Professor B. S. Markesinis

Given, according to the findings below, that on 28 June 1956 and 24 June 1959 M. Daber, an art dealer, sold Jeanne Charbonnet two canvases, respectively “Sketch of Horses” and “The Arrival of Marie de Medici at Marseilles”, as being by Delacroix; that when Jeanne Charbonnet died on 14 April 1966 her sole heir was Mlle Marceline Charbonnet, now married to M. Gans; that on 14 August 1985 Mme Gans sued M. Daber for damages on the basis that the authenticity of these pictures had been brought into doubt by M. Lee Johnson in his catalogue, and in addition sought the appointment of an expert; that the judgment under attack declined to appoint an expert, disimissed her claim and granted in part the counterclaim of M. Daber for damages for the distress caused to him by the litigation;

Given that Mme Gans’ first criticism is that in dismissing her claim on the ground that the long-held view that the pictures were genuine could not be sidelined on the say-so, based on no scientific evidence or visual inspection, of a single art historian, even a specialist in the works of Delacroix, the decision below “ducked” the essential issue in the lawsuit, namely whether, quite apart from the question of the actual authenticity of the works, the warranty given by a dealer when an amateur customer agrees to a purchase only because the genuineness of the picture is unquestioned does not extend to the case where the rating of the work of art is ruined by having doubt cast upon its authenticity, and that in failing to answer the point put to it by Mme Gans, whether the opinion of M. Lee Johnson was not apt to cast a doubt on the authenticity of the paintings, the decision of the court of appeal was without legal basis under article 1110 Code civil;

Given that secondly Mme Gans criticises the court’s refusal to appoint an expert, based on the view that such a measure would not be conclusive of the question, whereas, she argues, it could in fact have made good any shortcomings in the opinion of M. Lee Johnson and “in law” could either have established the inauthenticity of the two paintings by confirming the historian’s opinion or removed the doubt cast on their authenticity, and that the court thus violated articles 145, 455 and 458 of the new Code of Civil Procedure; and furthermore, in rejecting the opinion of an art historian without seeking the view of an expert, who alone could have provided an authoritative opinion, the court of appeal was acting as an art critic which was quite outside its functions so that its view could in practice have no impact on the current doubt about the genuineness of the pictures, and was thus in violation of article 2 of the Law of 11 March 1957 and articles 232 ff. of the new Code of Civil Procedure;

But given that Mme Gans was not seeking the annulment of the sales on the basis of an error on a substantial quality of the paintings in question but rather claiming damages from M. Daber and the appointment of an expert “to decide whether the pictures were genuine or not”, which the court was entitled to refuse on the ground that such an appointment could not provide the assurance which Mme Gans desired, and given that the seller could not be liable in damages just because doubts had been raised subsequently to the two sales; that therefore the decision was justified in law;

But in view of article 1382 Code civil:

In holding Mme Gans liable to pay 5,000 francs damages to M. Daber when she could reasonably have been in doubt about her rights, the court of appeal violated that text;

For these reasons QUASHES the decision of the Court of Appeal of Paris dated 29 September 1988, but only in so far as it held Mme Gans liable in damages, and remands the matter to the Court of Appeal of Douai.

Subsequent Developments

Civ. 1, 16/04/1991, Bull. n° 145 : As it is pointed out by M. Aubert in a commentary on this judgement (Dalloz, 1992, sommaires commentés, p.264), the doctrine laid down by this judgement – and which has not subsequently been confirmed or contradicted by the Cour de Cassation – is not in contradiction with the “Poussin” cases (see below), to the extent that the plaintiff did not claim the nullity of the sale for mistake relating to a substantial element of the work, but merely brought an action in liability against the seller, claiming damages “pursuant to an option similar to that available to the victim of deceit”, which required, as well as the conditions necessary for success in an action for nullity for mistake (appearance after the sale of a doubt as to authenticity), that fault by the vendor be established, which was not proved in this case. Several judgements of Courts of Appeal have subsequently implicitly confirmed this doctrine (in particular, Court of Appeal of Paris, 14 March 1997, which states that the owner and the seller of a work of art cannot be held liable if it not shown that they were aware of the absence of authenticity of that work of art).