Attributed, Signed, or Copy: Cataloguing a Questionable Painting
A consignor delivered an oil painting of bluebonnets with a signature 'Robert Wood' lower right and a typed, undated letter from her father stating he bought it 'as an original Robert Wood' in 1974. The auction house catalogued it as 'Robert Wood (American, 1889–1979), Bluebonnet Field, oil on canvas, signed lower right, est. $4,000–$6,000' with no qualifier. Its terms say: 'All lots sold AS IS, WHERE IS. Auctioneer makes no representation or warranty as to authorship, authenticity, provenance, or condition.' A buyer paid $7,800 including premium. A conservator later found the signature was added over old varnish and the canvas is a later copy. The buyer demands a full refund and threatens a Board complaint; the consignor says the letter proves it and refuses to return the net proceeds.
1. Does the as-is clause defeat the buyer's claim? Analyze the express-warranty and disclaimer issues.
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No - the as-is clause does not defeat the buyer's claim as drafted. UCC § 2-313 creates an express warranty by affirmation of fact or description: cataloguing the work as 'Robert Wood (American, 1889–1979) ... signed lower right' is a specific identification of authorship and of the signature, not puffery. UCC § 2-316 allows disclaimer of implied warranties, and an as-is clause can do that, but it cannot disclaim an express warranty that has already been made; where a general disclaimer conflicts with a specific description, the specific description ordinarily controls. The auctioneer will argue the buyer is a sophisticated collector, but that does not convert a factual attribution into an opinion. There is also a fair-dealing problem: the auctioneer had the consignor's letter, which is family hearsay and not authentication, yet catalogued the work without qualification. The buyer can rescind for breach of express warranty, and the measure is return of the $7,800 with the painting returned. The auctioneer should not hide behind the terms page; a Board complaint would focus on whether the catalogue was misleading. Preserve the catalogue, the letter, the consignor correspondence, and the conservator's report.
2. How should the lot have been catalogued, and what should the auctioneer do with the letter and the consignor now?
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Catalogue language and handling of the letter. 'Robert Wood' states authorship. Defensible alternatives are 'Attributed to Robert Wood,' 'Manner of Robert Wood,' 'Bears signature "Robert Wood"' (with no assertion that the signature is autograph), or 'American School, 20th century.' The estimate should reflect the uncertainty, and the description should say what is actually known: oil on canvas, signature of unknown date, provenance limited to a family letter. The letter should be summarized, not adopted: 'Accompanied by an undated typed family letter stating the purchaser bought the work as an original in 1974; the letter is not independent authentication.' If the auctioneer cannot resolve the question, it should obtain a written opinion from a qualified specialist or decline the consignment. It should also include a clear authenticity warranty and indemnity in the consignment agreement so the consignor stands behind authorship. After the sale, notify the consignor in writing, demand return of the net proceeds or offset against future settlements, and if the consignor refuses, consider paying the buyer and pursuing the consignor. Correct the catalogue error rather than concealing it.