Given that in 1933, according to the courts below, the late Jean-André Vincent sold by auction a picture called “Le Verrou” [The Bolt] as “attributed to Fragonard”, a picture later recognised to be authentic, and that his heirs sought to have the sale annulled for mistake, which both courts below refused to do;

Given that the heirs criticise the court of appeal (Paris, 12 June 1985) for basing its decision essentially on the view that the expression “attributed to…” indicates that there is some doubt about the attribution but leaves open the possibility that it is correct, whereas, as they maintain, in focussing on the objective meaning of the phrase “attributed to ..” and ignoring the question of what the seller really thought, namely that after the experts had given their opinions there was no possibility that the work could be authentic, the court of appeal violated article 1110 Code civil and article 455 of the new Code of Civil Procedure; and that furthermore a seller is under a mistake when he sells a work convinced that its authenticity is in doubt when in fact it is certainly authentic and there is no doubt about it;

But given first, that it follows from the conclusive findings of fact of the first instance court “that the parties who in 1933 bought and sold a work attributed to Fragonard did so in the knowledge that there was some uncertainty about its authenticity, and that the heirs of Jean-André Vincent have not met the burden of proving that the deceased sold his picture in the firm belief as to its authorship”, that therefore the first argument of the application for review cannot be accepted; and secondly, that both parties contracted on the basis that there was some uncertainty about its authenticity, and that therefore neither of them can found on a mistake when their shared uncertainty is later dissipated, and certainly not the seller nor his representatives when it is shown to be authentic; so that this ground of complaint must be wholly dismissed.

For these reasons, DISMISSES the application for review.

Subsequent Developments

Civ. 1, 24 mars 1987, Bull. n° 105 : This doctrine is part of a much wider line of cases according to which an element affected by a risk which was known at the time the contract was entered into cannot be considered to be essential to the extent that, when they entered into the contract, the parties accepted that such element may not be present (see in particular Cass. Civ., 16 May 1939 or, more recently, Com., 16 December 1970, Bull. No. 346: the fact that a commercial transaction is risky, together with the smallness of the price, exclude any question of mistake). In the same line of cases, reference may be had to a judgement handed down at almost the same time by the same Chamber (Civ. 1, 31 March 1987, Bull. No. 115): a professional dealer who acquires a statuette presented as being of the Tang period, but described as “heavily restored” cannot have the sale nullified if it appears subsequently that the statuette is not entirely authentic, since, according to the terms of the Court of Appeal, he “deliberately accepted the risk involved in such an acquisition”. It should also be noted that Decree no. 81-255 of 20 March 1981 relating to public auctions links the absence of any warranty to the use of the expressions “attributed to” or “studio of…”. Finally, it should be noted that, in the case of a sale between professionals (the position being perhaps different in the case of purchases by a mere non-professional) a judgement of 20 March 2001 (Civ. 1, published, application for review no.99-13.177) which finds the existence of a risk relating to the authenticity of the sold work from the mere fact that, although the sale contract did not mention any risk, it nevertheless explicitly referred to an expert’s report according to which the authenticity of the works was not certain, such risk excluding any mistake and sufficing in consequence for a rejection of the purchaser’s claim for nullity of the sale (see also Court of Appeal of Paris, 15 November 1990, Dalloz 1991, Sommaires Commentés p. 160 – 161: negligence of the seller who did not enquire sufficiently before the sale, and who, therefore, “imprudently and deliberately accepted the risk of mistake”).