Art, Antiquities and s.13, Sale of Goods Act 1979

This post was contributed by Professor James Devenney, tutor for Undergraduate Laws.

Pocket watch in sand.

Sometimes a seller will describe a piece of art as being by a famous artist or describe an object as being an antiquity of a particular origin.  If that description proves incorrect, might the seller be liable under s.13, Sale of Goods Act 1979 which implies a condition into contracts of sale of goods sold by description that “…the goods will correspond with the description”?

One difficulty is that the approach to interpreting s.13 has sometimes been difficult to predict. At times quite a wide approach has been adopted (see, for example, Arcos Ltd v EA Ronaasen [1933] AC 470). By contrast in Ashington Piggeries Ltd v Christopher Hill Ltd [1972] AC 441, at 503, Lord Diplock adopted a narrower approach to the concept of description under s.13.

An important, although controversial case, is Harlingdon & Leinster Ltd v Christopher Hull Fine Art Ltd [1991] 1 QB 564. That case concerned the sale of a painting thought to be by a famous artist. Crucially, although the seller was not a specialist in this area, the buyer was a specialist. The Court of Appeal held that there was no ‘sale by description’ with Nourse LJ arguing that it could not reasonably have been expected that the buyer would rely on the description given by the seller.

Yet, as Jacob J. noted in Qatar Investment & Projects Development Holding Co v John Eskenazi Ltd [2022] EWHC 3023 (Comm) at [122], Harlingdon is not an easy case to interpret (not least as the other judge in the majority, Slade LJ, did not necessarily adopt all of the reasoning of Nourse LJ). Qatar Investment & Projects Development Holding Co v John Eskenazi Ltd concerned the sale of items thought to be antiquities but which turned out to be modern forgeries. Jacob J. held that there was no express term relating to the origin of the items as, at least in this context, statements of opinion usually did not become terms of the contract (and this would preclude s.13 applying).  However, there was an implied term that the seller honestly and reasonably believed the items to be antiquities.

In so doing, Jacob J. relied on Brewer v Mann [2012] EWCA Civ 246 at [274] where Rix LJ stated:

“An opinion, for instance as to the attribution of a painting to a particular artist, may plainly be relied on by a person, particularly a potential buyer, to whom that opinion is expressed, but the essence of an opinion is that, although if given negligently, and a fortiori if given dishonestly, it may give rise to a breach of duty owed to the buyer on which the buyer may sue, nevertheless it would not generally give rise to an expectation that it would become a term of any contract into which the buyer entered in reliance on it.”

In that case Rix LJ quoted the “wise words” of Nourse LJ in Harlingdon (at 577-8):

“For my part, being confident that that principle [i.e. that dealers deal with each other on a caveat emptor basis] would receive general acceptance amongst dealers, I would say that the astuteness of lawyers ought to be directed towards facilitating, rather than impeding, the efficient working of the market.”

Might then a court be more prepared to find a sale by description under the Consumer Rights Act 2015, s.11 (given the different underpinnings of that Act) in respect of mis-descriptions by a seller of the provenance of art or other items?

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