A surprisingly large percentage of private art transactions are still done on a handshake, with no oral or written agreement documenting the sales’ terms and processes, as well as the clients’ expectations. UK law now includes a small corpus of cases where buyers have sued dealers or auction houses after a purchased work of art has turned out not to be as advertised. A 2022 case in the High Court of England and Wales now shows that intermediaries can place private sellers at just as much risk as private buyers.
The outcome of Feilding v. Simon C. Dickinson Ltd (hereafter referred to as “Wemyss”) provides a stark warning about how little English law requires of intermediaries concerning the research and marketing of works of art, as well as the duty to consult and inform, in the absence of specific contractual agreements. This can lead to significant financial loss for any seller unwilling or unable to monitor the decisions being made on their behalf.
The facts of the case
Wemyss centres on a painting acquired in 1751 by the Wemyss family as the work of Jean Siméon Chardin. Its first documented owner was an artist in Chardin’s immediate circle in Paris who acquired the painting within a decade of its creation (around 1741) and who had previously purchased and sold other paintings by Chardin.
The painting is published in the 1983 and 1999 Chardin catalogues raisonnés by Pierre Rosenberg. There it carries the title Le Bénédicité (saying grace), and Rosenberg categorised it as a work “de la main de Chardin” (“by the hand of Chardin”), albeit with an unusual term in the commentary (to be discussed shortly). Chardin regularly made multiple versions and repetitions of his paintings (the prime version of Le Bénédicité resides in the Louvre).
The findings arguably remove almost all expectations of transparency from any private art sale
The Wemyss Heirlooms Trust decided to pursue a private sale of Le Bénédicité in 2014 through the London-based Old Master dealer Simon C. Dickinson. In a letter that March, Dickinson told Lord Wemyss the painting was “probably by Chardin”, and it was soon sent to London for cleaning and further assessment. Six weeks later, Dickinson sold the work to another dealer as a work by “Chardin and Studio” for £1.15m—without either telling the trust about the downgraded attribution or consulting Rosenberg on its authorship. The second dealer resold the painting, this time fully attributed to Chardin, within six months to an important private collector of French paintings for a stated value of $10.5m ($7.5m in cash and a second painting valued at $3m).
In the aftermath, the Wemyss trustees sued Dickinson for negligence. The deputy high court judge Simon Gleeson found there had been no breach of duty by the dealership in its approach to researching, appraising and selling the painting, nor in its duty to inform. Unpacking his decision reveals the alarming precedents it sets for private sellers of art in the UK.
The court’s interpretation
Although there is no standardised process for researching and selling a work of art, the customs and practices undertaken by dealers and auctioneers of comparable stature in the UK, US and Europe are surprisingly consistent. The Wemyss ruling now grants these intermediaries startling latitude in these matters at the expense of sellers.
The court accepted that both parties to the lawsuit agree that Rosenberg “is the undisputed living authority on Chardin”. It also found that, had he been consulted, Rosenberg likely would have attributed Le Bénédicité to Chardin or said "see my book", a common reply to scholarly enquiries. Rosenberg had twice published the painting in his catalogues raisonnés with a capital letter, his designation for works “by the hand of Chardin”, whereas he assigned all copies and related materials a lowercase letter. The painting is listed in the catalogues’ Topographical Index, which, as per Rosenberg, only includes works by Chardin. Moreover, Rosenberg has published no paintings as “Chardin and Studio”, and no paintings correctly attributed as such have been sold at auction dating back to the artist’s lifetime.
Rosenberg’s commentary on the Wemyss Le Bénédicité states: “[i]l s’agit vraisemblablement … d’une ‘copie retouchée’ par Chardin” (“it seems to be in all likelihood … a ‘retouched copy’ by Chardin”). However, “copie retouchée” is not a recognised art historical term, and its meaning is undefined by Rosenberg. When asked about this by Dickinson’s solicitors in 2021, Rosenberg said the term is taken from an 18th-century French auction catalogue, hence the use of quotation marks, “without there being a definition to be found anywhere”.
Nevertheless, Judge Gleeson accepted that Dickinson had a right to apply the novel attribution “Chardin and Studio” after reassessing the cleaned painting. Furthermore, since the dealer was “a recognised expert in Old Master paintings” and his belief was “honestly held”, acting on this view “cannot be said to be negligent simply because his view is not universally accepted, or because he does not seek its validation from some other expert”.
The court concluded that a dealer in Dickinson’s position would only be obliged to consult an external expert if they believed doing so would improve the attribution. It also found that consulting Rosenberg would have amounted to “a spin of the roulette wheel”, so it was therefore unnecessary.
In the absence of a written or oral agreement between the parties, the court found that Dickinson’s only mandate was to “obtain the best price reasonably obtainable”. He was entitled to market the painting at his sole discretion, including to just one potential buyer—even though said buyer was another dealer who could safely be assumed to be purchasing inventory in anticipation of a profit upon subsequent resale. The court also concluded that the dealer’s written correspondence with the seller, repeatedly stating that the painting was “by Chardin”, was informal and therefore could not be taken at face value.
The ruling further posited the Wemyss trustees “would have been astonished and somewhat irritated to receive a communication” from Dickinson asking them to make judgement calls on such topics as: his post-cleaning reappraisal of the attribution, his disinclination to consult with Rosenberg on the attribution and the definition of “copie retouchée”, the depreciated value of a “Chardin and Studio” attribution (which the court found to be a loss of around £3m) and his pursuit of a sale to only another dealer. The family “had employed a respected professional to conduct the sale and expected him to get on with it”, Judge Gleeson wrote.
The consequences
The ruling in Wemyss sets worrisome precedents for private art transactions in the UK on multiple levels. Concerning works whose authorship may be unknown, outdated or contested, it now follows from English law that intermediaries in private art transactions need only consult external experts when they believe doing so will result in an upgraded, not a downgraded, attribution, calling into question the basic principles of scholarship.
The prime version of Jean Siméon Chardin’s Le Bénédicité (1740) at the Musée du Louvre, Paris
World History Archive
Paradoxically, the court said that an intermediary is obligated to advise a seller of the risks they might face from a buyer if a work’s attribution is later determined to have been too optimistic, but that an intermediary is not obligated to inform a seller of the value they may be forfeiting in a proposed sale if the current attribution is later determined to have been too pessimistic.
More broadly, the findings in Wemyss arguably remove almost all expectations of transparency from any private art sale in England arranged through an intermediary without a written or oral agreement. Dealers or other agents with claims to expertise and “honestly held” opinions now seem to have near-total autonomy to conduct business as they see fit, regardless of the possible consequences for sellers who enlist their services.
It follows that the onus for information has moved from the intermediary to the seller, who must seek answers by contract or informal enquiry about all facets of a possible sale. This is especially disturbing in cases where the client may not themselves be an art expert or have all the pertinent facts, meaning they may not know the right questions to ask. Now, caveat venditor (“let the seller beware”) is as relevant as caveat emptor (“let the buyer beware”).
• Rachel Kaminsky was the expert witness on art market customs and practices for the claimant in Feilding v. Simon C. Dickinson Ltd [2022] EWHC 3091 (Ch)