Time limitations in misattribution cases – Italy

Giuseppe Calabi
CBM & Partners, Milan

Under Italian law, buyers claiming misattribution of the artworks they have purchased have three remedies available against the sellers. The scope of each remedy is the termination of the sale contract, the repayment of the purchase price to the seller upon restitution of the misattributed artwork by the buyer. In certain circumstances, the claimant may also seek damages:

1. termination of the sale contract for sale of aliud pro alio – the buyer’s claim is that the misattributed artwork is a different object than the one they had purchased (Article 1453 of the Italian Civil Code (ICC));
2. termination of the sale contract for relevant defects that would make the artwork inadequate to the purpose for which it was purchased or that would significantly diminish its commercial value, or lack of essential or promised qualities of the artwork (articles 1490 and 1497 of ICC);
3. annulment of the contract for mutual mistake or wilful misconduct of the seller (articles 1429 and 1439 of ICC).

The first remedy (aliud pro alio) is subject to a statute of limitations of ten years from the date of the sale agreement (Cass 30713/2018, highlighting that the relevant starting date is the date of the sale contract and not the date on which the misattribution was discovered).

Italian case law provides that the buyer requesting the termination of a sale agreement of an artwork for aliud pro alio needs to prove misattribution (Cass 2737/1960; Cass 19509/2012; Cass 1889/2018; Cass 996/2022).

The second remedy – ie, the claim based on relevant defects or lack of essential qualities – is subject to two concurring terms: (1) eight days starting from the date when the buyer became aware of the defect or lack of quality, and (2) one year from the date of delivery of the artwork.

The claimant must prove the existence of relevant defects or lack of essential qualities.

For both the above remedies, the plaintiff is also entitled to claim damages, subject to the above-mentioned time limits. Italian courts normally liquidate damages for an amount equal to the current fair value of the artwork if the latter had been authentic at the time of the judgment.

The annulment of the sale contract in case of mutual mistake or wilful misconduct is subject to a statute of limitations of five years starting from the discovery of the wilful misconduct or mutual mistake by the claimant (and not from the date of delivery of the artwork; see Cass 985/1998; Cass 5429/2006).

In case of annulment, the claimant is not entitled to any damages.

The longer time limitation (ten years from the sale contract) for the aliud pro alio claim compared to the time limitations of the other two remedies (one year and five years, respectively), and the possibility to claim damages in addition to the termination of the contract, make the first remedy much more attractive than the two other remedies.

In practice, the annulment for mutual mistake/wilful misconduct is considered as a ‘last resort’ remedy, to be used only after the ten-year term provided in case of alius pro alio has expired.

The reasons are the following: (1) the ten-year term provided for starting an action aimed at the annulment of an artwork sale agreement normally starts from the date on which the mutual error/wilful misconduct was discovered, which may happen also after the ten-year term from the conclusion of the contract has expired, and (2) the plaintiff in an annulment case may only claim the repayment of the purchase price (normally lower than the current price of the artwork, if the latter were to be considered authentic, and frequently eroded by inflation). Unlike the aliud pro alio claim, no damages shall be awarded to the successful plaintiff in an annulment case.