Harlingdon and Leinster Enterprises Ltd v Christopher Hull Fine Art Ltd

JurisdictionEngland & Wales
JudgeLORD JUSTICE NOURSE,LORD JUSTICE STUART-SMITH,LORD JUSTICE SLADE
Judgment Date15 December 1989
Judgment citation (vLex)[1989] EWCA Civ J1215-8
Docket Number89/1238
CourtCourt of Appeal (Civil Division)
Date15 December 1989
Between:
Harlingdon and Leinster Enterprises Limited
Plaintiffs (Appellants)
and
Christopher Hull Fine Art Limited
Defendants (Respondents)

[1989] EWCA Civ J1215-8

Before:

Lord Justice Slade

Lord Justice Nourse

and

Lord Justice Stuart-Smith

89/1238

Case No. 8171309

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE WEST LONDON COUNTY COURT

(HIS HONOUR JUDGE ODDIE)

Royal Courts of Justice

MR. J. CRYSTAL (instructed by Messrs. Cameron Markby, Solicitors, London EC3N 4BB) appeared on behalf of the Plaintiff (Appellant).

MR. PHILIP RUEFF (instructed by Messrs. Child & Child, Solicitors, London SW1X 8LE) appeared on behalf of the Defendant (Respondent).

LORD JUSTICE NOURSE
1

It is a matter of common knowledge that the market value of a picture rests largely on its authorship. Frequently the seller makes an attribution to an artist, although the degree of confidence with which he does so may vary considerably. In some cases the attribution may be of sufficient gravity to become a condition of the contract. In others it may be no more than a warranty, either collateral or as a term of the contract. Or it may have no contractual effect at all. Which of these is in point may depend on the circumstances of the sale; there being, for example, a difference between a sale by one dealer to another and one by a dealer to a private buyer. Remarkably, there is little authority as to the legal consequences of these everyday transactions. Here, in a sale by one London dealer to another of a picture which was later discovered to be a forgery, the judge in the court below, finding that the buyer did not rely on the seller's attribution, gave judgment for the seller. The buyer nevertheless contends that there was a contract for the sale of goods by description and a breach of the condition implied by s. 13(1) of the Sale of Goods Act 1979. He also claims that there was a breach of the condition as to merchantable quality implied by s. 14(2) of the 1979 Act.

2

The trial took place in the Mayor's and City of London Court before His Honour Judge Oddie. On 19th January 1989 the learned judge delivered a very thorough judgment, in which he reviewed the evidence at length and made full and careful findings. In this court the facts can be stated comparatively briefly, mainly in the judge's own words.

3

The defendant company carries on business from a gallery in Motcomb Street, London SW1, being owned and controlled by Mr. Christopher Hull. In the autumn of 1984 he was asked to dispose of two oil paintings which were described in a copy of an auction catalogue of 1980 as being the work of Gabriele Münter (1877–1962), an artist of the German expressionist school. The true position was that the painting with which this action is concerned was not a work of hers but a forgery. Mr. Hull, who specialises in the works of contemporary British artists of the younger generation, had no training, experience or knowledge which would have enabled him to conclude from an examination of the paintings whether they were by Münter or not. He took them to Christies, who expressed interest. Before that he had been told by Mr. Evelyn Joll, a director of Thomas Agnew & Sons Limited, that the plaintiff company, which carries on business as Leinster Fine Art from a gallery in Hereford Street, London W2, had a good reputation as dealers in German art. In fact they had a special interest in buying and selling German expressionist paintings. The plaintiff company is owned and run by Mr. and Mrs. Holger Braasch and in the autumn of 1984 one of their employees in the business was Mr. Klaus Runkel.

4

Mr. Hull, acting on Mr. Joll's recommendation, telephoned the plaintiffs and spoke to Mr. Braasch. Mr. Hull said that he had come across, and was in the position to sell, two paintings by Gabriele Münter. Having seen the auction catalogue and consulted Christies, Mr. Hull had reasonable grounds for believing, and did believe, that they had been executed by that artist. Mr. Braasch expressed interest in the paintings. On some date at the end of November 1984 Mr Runkel visited Motcomb Street in order to view them. There he met Mr. Hull, who did not need to repeat, and did not repeat, what he had already said to Mr. Braasch about having two paintings by Münter. It was obviously and clearly understood between Mr. Runkel and Mr. Hull that the former had come to decide whether the plaintiffs might purchase a painting or paintings which the latter had said were by Münter. Mr. Hull said that he did not know much about the paintings, that he had never heard of Gabriele Münter and that he thought little of her paintings. He made it absolutely plain that he was not an expert in them. By some form of words which neither party could precisely remember at the trial, Mr. Hull to a certain extent made it clear that he was relying on Mr. Runke1.

5

Mr. Runkel examined the paintings. Neither he nor Mr. Braasch had special expertise or training in the assessment of German expressionist painting, and Mr. Runkel's examination neither would nor ought to have revealed that the painting in question was not by Münter. Mr. Runkel saw a copy of the auction catalogue, in which the relevant entry (translated from the German) was:

"VILLAGE STREET IN UPPER BAVARIA 22 000.-

Oil on cardboard. 39 x 48 cm.—Framed. Monogrammed, bottom left: MÜ. Gummed label on back with stamp of the estate of Gabriele Münter.

Alongside a massive wall surrounding a yard the street leads steeply into the background.

Three separate women on the path. Warm sunlight from the right.

Reproduction Table 25"

6

Mr. Runkel asked no questions about the provenance of the paintings. He did not ask for any opportunity to make further enquiries. He expressed no reservations about the degree of his own knowledge or experience. Neither he nor Mr. Hull expressed any doubt as to whether either or both of the paintings were executed by Münter. There was bargaining as to price, but Mr. Hull kept to his asking price of £6,000 for the painting in dispute. By the end of the meeting Mr. Hull and Mr. Runkel had agreed that that painting should be sold by the defendants and purchased by the plaintiffs at a price of £6,000 if and when the plaintiffs found a customer of their own who agreed to purchase it from them, failing which the painting would be returned to the defendants. That is the agreement with which this case is concerned.

7

On 1st December 1984 both pictures were delivered to the plaintiffs' gallery in Hereford Street. On 3rd December the plaintiffs notified Mr. Hull that they had found a customer of their own who had agreed to purchase the painting from them and they requested Mr. Hull to make out an invoice to them. The invoice was in these terms:

"Leinster Fine Art

9 Hereford Road

London W. 2.

FFAI 84208

3rd December 1984

GABRIELE MUNTER, 1877–1962

Dorfstrasse in Oberbayern

oil on board,

39x48cm,

MS No 961

£6,000"

8

The judge found that no addition was made to the terms of the sale when the invoice was made out. It merely gave effect to the earlier agreement between Mr. Hull and Mr. Runkel.

9

The judge found that both at the time when the agreement was made and subsequently when the invoice was made out both Mr. Hull and Mr. Runkel believed that the painting was by Münter and that, if either had not believed that, the deal would not have been made. He made the following further findings:

"In my judgment Runkel must have known and accepted that Hull was disclaiming any judgment, knowledge or private information which would or could have grounded the latter's earlier statement to Braasch that he had two paintings by Gabriele Münter for sale…

"I think the only conclusion which can be drawn from the unusual facts of this case is that it was Runkel's exercise of his own judgment as to the quality of the pictures, including the factor of the identity of their painter, which induced him to enter into the agreement he made with Hull. However, I am not satisfied that without the attribution, given what followed in the circumstances in which it was made, Runkel would not have purchased the painting. If it had never been made, Runkel would never have gone to see the paintings. But when he did go and examine the painting, he considered whether it was a Münter or not; he did agree to buy it, regardless of the attribution, because he relied upon his own judgment…

"It was reliance on his own assessment and not upon anything said by a man who had gone out of his way to stress his ignorance of the paintings which led Runkel astray."

10

Thus did the judge find as a fact that the plaintiffs did not rely on the description of the painting as one by Gabriele Münter. They relied only on their own assessment.

11

The rest of the story can be briefly told. In February 1985 the plaintiffs' purchaser sent the painting for examination by the Gabriele Münter—und Johannes Eichner—Stiftung in Munich, which is the keeper of the entire estate of Gabriele Münter. By a letter of 26th February the Stiftung's director, Dr. Armin Zweite, informed the purchaser that he and two other experts had independently of one another formed the view that the painting was a forgery. This information was passed back to Mr. Braasch, who in March took the picture back and refunded the purchase price to the purchaser. Mr. Braasch then asked Mr. Hull to take back the picture and refund the £6,000, but that request was refused. Proceedings were commenced by a writ issued on 11th September 1985, claiming repayment of the £6,000 plus expenses of £250, alternatively damages.

12

Before Judge Oddie and initially in this court the plaintiffs' case was put in four different ways. First,...

To continue reading

Request your trial
10 cases
  • Brewer v Mann
    • United Kingdom
    • Court of Appeal (Civil Division)
    • March 7, 2012
    ...not accuracy (see Cartwright, Misrepresentation, Mistake and Non-Disclosure, 2 nd ed, 2007, at para 3.15, Harlingdon and Leinster Enterprises v. Christopher Hull Fine Art Limited [1991] 1 QB 564 (CA), Drake v. Thos Agnew & Sons Limited [2002] EWHC 294 (Buckley J) 15; (xi) that the judge had......
  • Sameer Karim and Another v Douglas MacDuff Wemyss
    • United Kingdom
    • Court of Appeal (Civil Division)
    • January 28, 2016
    ...of warranty all that the claimant needs to prove is that the warranty has been broken. As Slade LJ said in Harlingdon and Leinster Enterprises Ltd v Christopher Hull Fine Art Ltd [1991] 1 QB 564: "If a party to a contract wishes to claim relief in respect of a misrepresentation as to a matt......
  • Qatar Investment & Projects Development Holding Company v John Eskenazi Ltd
    • United Kingdom
    • Queen's Bench Division (Commercial Court)
    • November 29, 2022
    ...also be held not to be by description where the seller does not guarantee the attribution of the work. In Harlingdon and Leinster Enterprises Ltd v Christopher Hull Fine Art Ltd, for example, a sale of a picture between dealers was held not to be by description where it was clear that the b......
  • Thomson v Christie Manson & Woods Ltd
    • United Kingdom
    • Court of Appeal (Civil Division)
    • May 12, 2005
    ...Sumption referred here to Luxmoore-May v. Messenger May Baverstock at 1020F and Harlingdon Enterprises v. Christopher Hull Fine Art Ltd [1991] 1 QB 564 at 577E. Ms Thomson's complaint was, not that she was not told that Christie's were just expressing their opinion, but that there were ser......
  • Request a trial to view additional results
5 books & journal articles
  • The Fine Art of Acquiring Authentic Artworks.
    • United Kingdom
    • Art Antiquity & Law Vol. 28 No. 2, July 2023
    • July 1, 2023
    ...para. 8-020. (87) Ibid., para. 8-021. (88) Treitel cites Harlingdon and Leinster Enterprises Ltd v, Christopher Hull Fine Art Ltd [1991] 1 Q.B. 564. (89) Treitel above, note 79 at para. (90) This applies to business-to-business transactions and not to business-to-consumer sales. Consumers g......
  • MISDESCRIPTION AND MISREPRESENTATION LIABILITY ARISING OUT OF ART AUCTIONS IN NEW ZEALAND.
    • United Kingdom
    • Art Antiquity & Law Vol. 26 No. 1, April 2021
    • April 1, 2021
    ...to Vendor' Laws of New Zealand (Butterworths, Wellington, 2020) at [24], (3) Cuckmere Brick Co. Ltd v. Mutual Finance Co. Ltd [1971] Ch 949 (EWCA). (4) See P Watts and FMB Reynolds Bowstead and Reynolds on Agency (21S1 edn, Sweet and Maxwell, London, 2018), at [3-004] (5) Where this occurs,......
  • Scope of the Auction House Authenticity Guarantee: Sub-Agency Contracts and Interpretation of the 'Generally Accepted View'.
    • United Kingdom
    • Art Antiquity & Law Vol. 25 No. 4, December 2020
    • December 1, 2020
    ...above (note [31]). More recent examples include cases such as Harlingdon and Leinster Enterprises Ltd v. Christopher Hull Fine Art Ltd [1991] QB 564 (about an alleged Gabriele Monter painting) and Drake v. Thomas Agnew & Sons [2002] EWHC 294 (QB) (about an alleged Van Dyck). See the fol......
  • BUYING INVESTMENT ART: AUTHENTICITY, RISK AND A FOUR-PROOF FRAMEWORK.
    • United Kingdom
    • Art Antiquity & Law Vol. 27 No. 2, August 2022
    • August 1, 2022
    ...contract remained available some five years after purchase. The work had been sold as a Constable. See Denning L.J. at pp. 89-90. (59) [1991] 1 Q.B. 564 (E.W.C.A.) at p. 568. Here Nourse L.J. reflected; "[i]t is a matter of common knowledge that the market value of a painting rests largely ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT