Olivier de Baecque
De Baecque Bellec, Paris

Charlotte Scetbon
De Baecque Bellec, Paris

Introduction

The statutes of limitations applicable to different actors in the art market lack harmonisation. While both sellers and buyers are subject to the standard statute of limitations, auction houses and their experts benefit from a shorter five-year statute of limitations from the date of the auction.

In some cases, the statutes of limitations can be contractually modified between certain parties.

The standard statute of limitations, applicable to sales of artworks  

Sales of artworks are subject to the standard statute of limitations, which is enclosed within a dual timeframe.

There is a ‘sliding’ five-year statute of limitations, from the day the rights’ holder knew or reasonably ought to have known the facts enabling them to exercise his or her rights (Article 2224 of the French Civil Code).^[1] The starting point of this time limit runs when it can be assumed that the individual knows or is able to know the facts on which his or her action is based. Therefore, the beginning of the time period for an action to annul an artwork’s sale due to an error only begins to run on the day this error is discovered,^[2] not simply suspected.^[3] According to the prevailing case law, mere suspicion of an artwork's lack of authenticity is not deemed sufficient. Evidence supporting the alleged lack of authenticity, such as an expert opinion or the refusal by an artist committee to issue a certificate of authenticity, is necessary.^[4]

There also is an ‘overall’ statute of limitations of 20 years, counting from the ‘day of birth of the right’ (Article 2232 of the French Civil Code).^[5] A doctrinal debate remains regarding the starting point of the latter.^[6] Some consider it to be the day the substantive right arises, such as the day of sale, while others consider it to be the day the right to take legal action arises, such as the day the defect enabling legal action is discovered. The majority of scholars favour the first option, which provides a certain starting point for the statute of limitations and is compatible with the sliding five-year statute of limitations.^[7] In our view, the second option would create uncertainty: should the timeframe run from the day the right to take legal action arises, it would create a second ‘sliding’ statute of limitations that could render legal actions potentially imprescriptible, undermining legal certainty.

Therefore, a buyer can, for example, request the annulment of a sale due to an error regarding the very substance of the thing that is the object of the agreement, within five years from the day he or she became aware or should have become aware of the facts on which their action is based (sliding timeframe), within the time limit of 20 years from the date of sale (overall time limit). Within this timeframe, the buyer can pursue legal action against a professional art dealer in the case of private sales, as well as against the seller in the context of an auction. Likewise, an expert who issues an incorrect certificate of authenticity, unrelated to an auction sale, can be held liable for a period of five years from the discovery of the error (sliding time limit), up to a maximum of 20 years from the issuance of the certificate (overall time limit).

The short statute of limitations, applicable to liability actions related to auctions and appraisals  

Article L 321-17 of the French Commercial Code deviates from the standard rule by establishing a specific and shorter statute of limitations for liability actions against auction houses and their experts, related to estimates and auction sales. Auction professionals benefit from a five-year statute of limitations, which starts to run from a certain and precise event: the auction or appraisal. This statute of limitations is advantageous compared to the standard sliding statute of limitations applicable to other actors in the art market, such as dealers, gallery owners, experts, and legal actions between buyer and seller. Thus, an action to cancel an auction sale (due to an error for example), involving the seller and the successful bidder, the sole parties to the sales contract, can be initiated within the ‘sliding’ five-year statute of limitations. Conversely, the liability of the auction house, which is solely a signatory of a mandate with the seller, cannot be pursued beyond five years from the auction’s date.

It may seem paradoxical that the non-professional client, who entrusts an estimate and sale to auction professionals, is held responsible for a longer period than the professionals he or she trusted.

Possibility to contractually alter the statute of limitations

It is possible for parties to contractually agree on altering the statute of limitations, except in a contract between a professional and a consumer, and regarding the liability of an auction house and its experts.^[8]

Article 2254 of the Civil Code states ‘the statute of limitations can be shortened or extended by agreement of the parties. However, it cannot be reduced to less than one year or extended to more than ten years’.

Professionals (dealers, experts, brokers, auction houses, etc) can thus shorten the statute of limitations by contract. If they wish, they simply need to modify the statute of limitations through appropriate clauses in their contractual documents (certificates of authenticity, estimates, invoices, etc). Likewise, two non-professionals can contractually alter the statute of limitations, for example, in a private sale.

As stated, a professional cannot enforce such provisions against a consumer. Article L 218-1 of the Consumer Code expressly restricts this possibility: ‘The parties to a contract between a professional and a consumer cannot, even by mutual agreement, modify the statute of limitations or add to the causes of suspension or interruption thereof’. The legislator’s aim is to protect the weaker party in the contract, the consumer, who often has no negotiation power.^[9]

Finally, even though the law does not provide clear guidance on this matter, the prevailing legal authors seems to be opposed to the possibility of contractually altering the 20-year statute of limitations (Article 2232 of the French Civil Code). They consider that the latter aims to strengthen legal certainty. Consequently, they consider it appears inconsistent to be able to extend the ‘overall limitation period’ beyond 20 years. Similarly, in their view, shortening the ‘overall time limit’ could infringe the right of access to court as provided in Article 6 of the European Convention on Human Rights.^[10]

Ultimately, there are still imperfections in achieving harmonisation and coherence regarding statutes of limitations within the art market.