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Harvey Manes MD

Introduction - Article by Harvey Manes MD - continued

The burden of proof to establish negligence is less difficult than proving fraud. The buyer would have to show that the dealer did not exercise reasonable care or competence in determining legitimacy. Again, a dealer could defend himself against a negligence claim by saying that in his expert opinion the piece was legitimate. Other experts would have to testify as to the reasonableness of the dealer’s opinion while the fact-finders would make the final determination.
Even if the cause of action is either fraud or negligence, if the buyer is considered knowledgeable, the seller-dealer could defend his position by claiming that the buyer is equally liable since he should have researched the artwork before the purchase was completed.

If the buyer could prove fraud or negligence, his complaint may not be heard in tort since the courts are divided as to whether or not they will hear a case that only involves economic and not personal loss. Tort law almost exclusively applies to personal injury cases and "there is no recovery in tort if there is no personal [economic] loss." This means that the unfavorable UCC SOL of four years would have to be applied and there can be no claim for negligence.

An artist whose works are frequently associated with art fraud is Salvador Dali. It is said that he purposely tried to confuse the market by signing blank sheets of lithograph papers, which were later drawn upon by other artists in his style and then passed off as original pieces. When brought to his attention, the only art that he said was a fake was "a picture for which he had not been paid." The drawings that were not done by him, even though they bare his signature, are not considered authentic. As a final, surreal joke on the art world, Dali, changed his signature several times over the years, thereby making his work even more difficult to authenticate by the art community. Obviously, it is extremely difficult to distinguish the fakes from the real pieces. Before Christie’s accepts a consignment, they require a certificate of authenticity from Pierre Descharnes, the worlds leading expert on Dali. Mr. Descharnes, previously a postal worker with no art history background, became a close friend and personal secretary to Dali. Eventually he became the leading expert by publishing Dali’s catalogue reasonee.

A good example of a case of fraud that involved fake prints attributed to Dali occurred in 1981 in which a retail buyer, Balog, while on vacation in Hawaii purchased several Dali lithographs from Central Art Gallery, a nationwide chain of galleries selling Dali prints. The gallery provided a their own personal certificate of authenticity with each print. Balog did not realize that he owned fakes until 1988; well after the four year SOL had passed. Two world-renowned Dali experts (including Mr. Descharnes) agreed and testified that the art works that were sold were fakes. In addition to the defense of SOL, Central Art Gallery stood by their personal opinion of authenticity and tried to discredit the credentials of the plaintiff’s experts because they did not have any formal art history education. In the interest of justice, the court began the SOL at the time of discovery, 1988, and applied UCC section 2-313, which protects purchasers of counterfeit artworks by means of an express warranty.

The court made its decision

Harvey Manes, M.D.


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