The Responsibility

Two new decisions of jurisprudence, returned at the end of the year on 2009, specify the area(extent) of the responsibility of the auctioneers and the experts.

In the first affair(business) (TGI Paris, in December 1st, 2009), a bronze of Rodin acquired in public sale shows itself not authentic. The buyer commits(hires) an action(share) in responsibility against the auctioneer and the expert of the sale. Confirming a constant jurisprudence, the court of Paris condemns the auctioneer and the expert in solidum to pay off expenses and fees acquitted(settled) by the buyer. The court so reaffirms the irrefragable character of the mentions (grades) carried(worn) without reserve in the catalog of sale. Their hypocrisy, deliberate or not, allows the cancellation of the sale and engage inevitably the responsibility of the SVV. As underlines it Jean-Marie Schmitt, ” France chose to apply to the market of the art, in spite of its specificities and its hazards, the rules(rulers) of consumer protection ” (The Market of the art, The French Documentation, on 2008) .Le judgment(sentence) seems more differentiating for the expert; The court takes care of raising(finding) all the de facto circumstances characterizing the fault. He underlines the existence of numerous false Rodin and the complaint of the museum Rodin for forgery(imitation) from 1989. From then on, ” in the aforesaid context “, the expert showed a ” incorrect (guilty) carelessness(negligence) ” by certifying without particular search(research) the authenticity of the litigious work. It is true that the judgment(sentence) of the court remains severe for the expert. Indeed, once his(its) recognized fault, he(it) is condemned to guarantee entirely the auctioneer; yet(now), being the latter himself(itself), in essence, an expert, he(it) would have been conceivable that the weight of the error, and subsequently the cost of its repair, are shared between these two professionals. This judgment(sentence) can be moved closer to a judgement of the Highest Court of Appeal of December 17th, 2009. Mr. X made establish an estimation ” value of insurance(assurance) ” of paintings(boards) by an expert. X contract later a loan, guaranteed by the discount (delivery) in security of paintings(boards). The loan not having been honored, the bank realizes its security for an amount very lower than that of the estimation. She(it) engages as a consequence(accordingly) the responsibility of the expert. The Court of Appeal of Paris will refuse nevertheless the bank in the following motive: ” the fact that the Y. company overvalued certain paintings(boards) in a exaggerated way, within the framework of an estimation ” value of insurance(assurance) “, does not allow the bank to engage its responsibility, since it had never been informed about the use by the bank of the estimation put back(handed) to Mr. X. ” But the stop(ruling) is curtly broken in the only motive ” that the expert who overestimates the good(property) commits a professional misconduct “. The study of the facts allows to qualify the severity which appears to underlie this decision. First of all, the magistrates did not base(establish) themselves on the values resulting from the public sale to appreciate(estimate) the scale of the overvaluation. According to the jurisprudence, a SVV, as the expert who assists him(it), ” do not answer [] of the chance inherent to the auction public which affects(allocates) the price(prize) of auction(awarding) “. The judges based(established) themselves on the other hand on figures standing out(going out again) from the judicial expertise. The judicial expert recognizes that he is the custom to fix the ” value insurance(assurance) ” to an upper amount of 30 % in the value of the market. However, it seems that amounts established for certain paintings(boards) were very superior to their real value. This disproportion caused a damage to the bank. The latter would not indeed have accepted an amount of loan so high if she(it) had had knowledge of the real value of the works and would so have limited her(its) loss. However, the Court of appeal should hold(retain) a division(sharing) of responsibility. Indeed, a value of insurance(assurance), that it is declared or approved, does not commit(hire) the insurer, who can always dispute the real value of the good(property) during the disaster. The bank showed, obviously, a blameworthy lightness(thoughtlessness) by holding(retaining) such a value, besides fixed about one and a half year before the grip(taking) in security of the works. It does not seem that the Court of Cassation imposes an obligation(bond) of result(profit) regarding expertise. She calls back that the intrinsic value of a work of art could not differ too appreciably according to the person for whom the expertise is intended and the thrown(planned) use.