Snapshot: buying and selling art in France

Buying and selling

When does ownership of art, antiques and collectibles pass from seller to buyer?

Ownership of art, antiques and collectibles passes from seller to buyer as soon as they have agreed on the artwork to be sold and on its sale price. This is the case even if the art, antique or collectible has not yet been delivered or the price has not yet been paid (article 1583, Civil Code). However, the buyer and the seller can contractually agree to postpone the transfer of ownership, until payment or delivery of the artwork, for example.

At auction, title passes from the seller to the buyer at the time the auctioneer declares the lot sold to the highest bidder. Nevertheless, many auction houses have contractually postponed in their conditions of sale the title transfer until payment of the price by the purchaser in full and cleared funds. In a decision made on 28 March 2024, the Supreme Administrative Court ruled that those title retention clauses were incompatible with the provisions of the French Commercial Code, according to which title passes at the moment the auctioneer declares the lot sold, a principle that is not subject to any exception.

Does the law of your jurisdiction provide that the seller gives the buyer any implied warranty?

Under French law, there is no implied warranty of title per se. However, the seller gives the buyer an implied warranty of peaceful possession. In other words, the seller warrants to the buyer that the art, antique or collectible is sold free of any third-party claims. Hence, if the buyer’s title is challenged, the seller may have to refund the sale price independent of damages. The implied warranty of peaceful possession may be excluded or limited by contract. An action based on a breach of warranty of peaceful possession is subject to a five-year statute of limitations, which starts to run as of the date of the breach.

Can the ownership of art, antiques or collectibles be registered? Can theft or loss of a work be recorded on a public register or database?

There is no title registry of art, antiques or collectibles.

There is also no public database of stolen works. International databases are typically used, such as the Art Loss Register and the Interpol database. The French Central Office for the Fight against Illicit Traffic in Cultural Goods has a specific database called TREIMA, but it is not available to the public.

However, art, antiques and collectibles that either belong to public entities or are classified as historical monuments are respectively registered on the Joconde and the Palissy database. These databases contain lists of stolen artworks owned by public entities or classified as historic monuments.

Does the law of your jurisdiction tend to prefer the victim of theft or the acquirer in good faith of stolen art?

French law tends to prefer the acquirer in good faith of stolen art over the victim of theft for several reasons.

First, each transfer of an artwork creates a new title (independent from the former) that stems from the mere possession of the artwork, according to a core principle under French law that states that possession equals title as far as movable goods are concerned (article 2276, Civil Code). If the possessor of the stolen art, antique or collectible acquired it in good faith, ownership in the art, antique or collectible automatically vests in the acquirer.

Second, the claim of ownership of the victim of theft is subject to a three-year statute of limitations, which is shorter than the ordinary five-year limitation period.

Third, if the good-faith possessor of a stolen artwork, antique or collectible acquired it at an art fair, at auction or from a professional of the art market, the original owner may only obtain its restitution in consideration of the reimbursement of the price the possessor paid for it (article 2277, Civil Code).

Finally, good faith is always presumed (article 2274, Civil Code). A possessor is in good faith if they regard themselves as entitled to the property, and this belief must be reasonable. The burden of proof of the possessor’s bad faith thus lies with the victim of theft.

As an exception to the above principles, when the victim of theft is a public entity, and the stolen art, antique or collectible belongs to the public domain (in the sense of public property law, not to be confused with the public domain in the sense of intellectual property law), the public victim’s restitution claim is not subject to any statute of limitations, and the good-faith possessor is not entitled to any compensation.

If ownership in stolen art, antiques or collectibles does not vest in the acquirer in good faith, is the new acquirer protected from a claim by the victim of theft after a period of time?

Ownership in stolen art, antiques or collectibles automatically vests in the possessor who acquired them in good faith. The victim of theft may only claim ownership for a period of three years as of the date of the theft.

Must the buyer conduct due diligence enquiries? Are there non-compulsory enquiries that the buyer typically carries out?

There is no formal legal obligation for the buyer to conduct due diligence enquiries when buying art, antiques or collectibles. However, in the event the buyer wishes to have the sale voided on the basis of an error committed on the substantial qualities of the artwork bought - such as an error on the correct attribution of the work, on its dating or on its condition - the courts may take into account the due diligence enquiries carried out by the buyer.

In the absence of such enquiries, the courts may find the professional buyer to have been reckless in their purchasing of the art, antique or collectible (particularly when the buyer is a professional of the art market). However, a non-professional buyer may reasonably rely on the description of the artwork when buying from a professional seller.

Typically, when conducting due diligence enquiries, the buyer should do the following:

• request documents confirming the validity of the seller’s title (free of any third-party claims);
• request documents evidencing the provenance of the art, antique or collectible;
• search available databases of stolen works - notably the Art Loss Register - if any doubt arises on the provenance of the art, antique or collectible;
• confirm the authenticity of the art, antique or collectible and possibly request an expert opinion; and
• establish whether the art, antique or collectible was legally imported into the country or, if it is to be exported, whether an export certificate or licence has been obtained or if they must obtain it.

Must the seller conduct due diligence enquiries?

There is no formal legal obligation for the seller to conduct due diligence enquiries when selling art, antiques or collectibles. However, similarly to the buyer, in the event the seller purports to have the sale of an artwork, antique or collectible voided based on an error and in the event his/her liability is challenged, the courts will take into account the due diligence enquiries carried out by the seller. In the absence of such enquiries, the courts may find the seller to have been reckless in their selling of the art, antique or collectible and either reject the action to void the sale or find them liable for having sold an inauthentic piece.

Professionals of the art market are subject to anti-money laundering obligations according to which they must in particular conduct due diligence on the identity and title of the sellers, when the transaction or series or transactions in which they are involved amounts to €10,000 or more. In addition, certain art market professionals have adopted codes of ethics in which they provide for a certain number of due diligence enquiries to be conducted, mainly on the authenticity and the provenance of the art, antique or collectible. Most codes of ethics are soft laws (ie, not binding), but courts usually rely on these sets of non-binding rules to assess the potential liability of art market professionals.

Can ownership in art, antiques or collectibles vest in the acquirer in bad faith after a period of time?

Yes, ownership in art, antiques or collectibles may vest in the acquirer in bad faith after a period of adverse possession. Possession is composed of two elements: a physical element (material acts similar to those that a legitimate owner would perform) and a psychological element (the intention to hold for oneself).

To adversely possess, the possession must be continuous and uninterrupted, peaceful, public and unequivocal (article 2261, Civil Code). If one of those requirements is absent, the possession is vitiated, and the possessor is unable to acquire property through the passage of time.

There is controversy surrounding the period of time that is required for the ownership of movable property (as opposed to real property), such as art, antiques or collectibles, to vest in the acquirer in bad faith as there is no specific provision in the law. Depending on the interpretation of the provisions of the Civil Code, the period may be five years or 30 years. Authors generally consider that 30 years of adverse possession is more consistent with the legal framework.

If the buyer discovers that the art, antique or collectible is a forgery, what claims and remedies does the buyer have?

The buyer of an artwork that transpires to be a forgery may bring an action to void the sale on the basis that his or her consent was vitiated by an error on the authenticity of the artwork. If the buyer successfully demonstrates that their consent was vitiated, the contract is voided ab initio (ie, the sale is treated as having never been concluded). Hence the parties must be returned to the situation they were in before contracting the sale: the buyer must return the artwork to the seller, and the seller must refund the price to the buyer.

The action to void a sales contract is subject to a five-year limitation period, which starts to run from the discovery of the error, it being specified that no action on a contract may be brought once 20 years have elapsed after the date the contract was entered into.

If the seller is in bad faith (ie, they sold the artwork, antique or collectible knowing it was a forgery), the buyer may also claim for damages on the basis of a contractual liability action. The act of knowingly selling a forgery as an original is also subject to criminal sanctions.

Can a seller successfully void the sale of an artwork of uncertain attribution subsequently proved to be an autograph work by a famous master by proving mistake or error?

This depends on the seller’s understanding at the time of the sale and on the wording used to describe the artwork. If the artwork is sold as a ‘copy of’, ‘studio of’ or ‘circle of’ and the seller can show that they contracted the sale in the erroneous belief that the artwork could not be an autograph work, they will have an action to void the sale.

On the other hand, if the artwork is sold as ‘attributed to’, the seller does not have an action to void the sale as they accept the risk that the work might be an autograph piece (as it also might not be).