“The people from Acropolis owe this passionate collector [i.e. Maskovsky] a very great deal. 50 canvasses from the best Russian artists, forming his entire collection, adorn their exhibition. […] And they [the ‘Acropolis’ people] themselves admit that the main ‘giants’ upon the backs of which the exhibition rests are the collections of L. Maskovsky, L. Schultz, V. Vasilyev, and D. Kopylovich”
“LITERATURE:V. Lebedeva, Boris Kustodiev (Moscow, 1981), p. 39-41 This painting is one of the best examples of Kustodiev’s idea of the provincial merchant class. The body of this merchant woman is an eloquent image of the sloth and self-satisfaction of the entire merchant class. The blue hues, which prevail in the picture’s colour scheme, convey a feeling of stifling warmth, filling the room. The woman’s body and accessories which surround her and complement one another, create an integral artistic image, the pale pink form of her body is moved into the foreground and is outlined by soft contours (V. Lebedeva, op. cit.)”
“Subject to the terms and conditions of this paragraph, Christie’s warrants for a period of five years from the date of the sale that any property described in headings printed in UPPER CASE TYPE (i.e. headings having all capital-letter type) in this catalogue … which is stated without qualification to be the work of a named author or authorship, is authentic and not a forgery. The term ‘author’ or ‘authorship’ refers to the creator of the property or to the period, culture, source or origin, as the case may be, with which the creation of such property is identified in the UPPER CASE description of the property in this catalogue. Only UPPER CASE TYPE headings of lots in this catalogue indicate what is being warranted by Christie’s. Christie’s warranty does not apply to supplemental material which appears below the UPPER CASE TYPE headings of each lot and Christie’s is not responsible for any errors or omissions in such material”
“It is not necessary to have spent years dedicated to one particular artist to become an expert in him or her: a sustained consideration of their life’s work over even a relatively short period by someone … equipped to do so, can allow that person to speak with justified confidence to the artist’s oeuvre”
“Whoever was responsible for creating [‘Odalisque’] obviously struggled greatly with depicting the left arm and the left breast of the reclining figure …, as well as the right leg, which appears to grow out of her abdomen. It is inconceivable to me that Kustodiev, who was capable of rendering the female form perfectly from memory, would have faced any such difficulties, and I am not aware of any recognised work by Kustodiev where such basic errors are committed”
“[Patterns or designs in ‘Odalisque’ are] very localised, because the yellow curtain is seen as just yellow without having any other colour or hue, and we don’t see a distinguished pattern or design on this curtain. The blue blanket is just a single colour, single tone; the chest looks green, and red carpet. And we never, ever came across such – like that in Kustodiev’s paintings. A red colour would always, almost always be shown either on the wall, on the wallpaper, or the curtain. In other words, the colours would have been reflected in each other in different objects, and here they’re too local and too pure”; v) The blanket: Mr Rutherston said that the blankets in Kustodiev’s drawings and paintings tended to be beautifully done. In contrast, the blanket in “Odalisque” is (in Mr Rutherston’s words) “coarse” and “not a great painting”
“It is worth mentioning, that Akropoltsy [i.e. members of the ‘Acropolis’ group] had to deal a lot with authenticity issues …. Not only Akropoltsy themselves but also many other specialists including Prof. Vipper, K. Yuryan, N.P. Bogdanov-Belsky, K.S. Vysotsky were used as specialists. As a result of this collaboration, 15 paintings were not included in the exhibition as the attribution was rejected”
“Several ‘Levitans’ turned out to be copies! So that’s why that swindler went and sold them! (Maskovsky)” (“Swindler” is a translation to the Russian “АРАП”
“With the approach of winter the population of revolutionary Petrograd faced a shortage of provisions and fuel. The Kustodievs found themselves hard pressed, forced to exchange, with difficulty, clothing and pictures for food and firewood”
“to say that the market for such a forgery was not particularly valuable at the relevant time is to ignore the extremity of the personal financial hardship which beset the vast majority of those who lived in what had been Russia after the Bolsheviks unleashed their Revolution, and which in certain circumstances would have made practically any payment ‘valuable’”
“even if the payment for the portrait was as prosaic as a sack of flour and a cockerel, who is to say that in the currency of the day that was not a king’s ransom (because no sum of roubles could buy such scarce commodities)?”
“some sort of daubsters are making the copies quickly and deftly from this painting, and Brodsky touches these copies up a bit and puts his surname on them”
“[W]hile it is of course a distinct possibility that the object was created specifically with such deception in mind we have no direct evidence of this, and we should not close our minds to other less obvious but equally rational explanations. It is quite possible, for example, that [‘Odalisque’] was done as a joke or a parody in the style of Kustodiev’s merchant wife series, for which the artist was so well known both in Russia and abroad”
“After dinner … I, F.F. Notgaft and Y [Kustodieva] took up a final check of the list of works of B [Kustodiev]”
“I do not specialise in chemistry. I take a particular interest in everything, and I control all the processes, but I will never allow myself to call myself an expert, or to pass expert judgments in the area of technology or art history, without having special education, although I know quite a lot”
“A man cannot be said voluntarily to be undertaking a responsibility if at the very moment when he is said to be accepting it he declares that in fact he is not. The problem of reconciling words of exemption with the existence of a duty arises only when a party is claiming exemption from a responsibility which he has already undertaken or which he is contracting to undertake”
“On such an approach it would need to be strictly construed and the argument was available that it did not as such cover an oral statement. But that is not, in my judgment, the right approach. It is not an exclusion to be construed. The right approach, as is made clear in Hedley Byrne, is to treat the existence of the disclaimer as one of the facts relevant to answering the question whether there had been an assumption of responsibility by the defendants for the relevant statement. This question must be answered objectively by reference to what a reasonable person in the position of [the plaintiff] would have understood at the time that he finally relied upon the representation.”
“I first look at the question generally without reference to the conditions. The special features of this case are that Christie’s themselves have sole discretion over how they describe a lot. This fact is made known to buyers, in the sense that Christie’s disclose to potential bidders some of the terms on which they are acting for the seller. Christie’s employ skilled personnel who take considerable trouble to satisfy themselves as to the accuracy of the catalogue entries. This is well known. Buyers will know, therefore, that Christie’s have satisfied themselves as to the authenticity of a Lot, and the cataloguing practice which is disclosed, gives considerable latitude for appropriate qualifications where Christie’s are of the opinion that such is called for. The buyer is required to pay a substantial premium to the auctioneer. If the auctioneer assumes no responsibility to him, one might ask what the payment is for. On the other hand, in normal circumstances, a buyer has no reason to believe that an auctioneer has assumed any responsibility to him. The auctioneer is the seller's agent. The buyer only becomes contractually bound by the conditions when his bid has been accepted. On balance, and primarily because Christie’s take responsibility for the catalogue description which is an important feature from the buyer's point of view, and because the buyer pays a premium, I would be inclined to the view that there was an assumption of responsibility such that Christie’s become liable to a buyer for negligent misstatement in the catalogue entries. Do the Conditions affect this conclusion? Condition 3(a) says that statements in the catalogue are statements of Christie’s opinion. Condition 11(a), under what might be thought to be an inappropriate heading ‘Guarantee’, excludes responsibility for the ‘correctness’ of any such statement but it does not, in terms, exclude responsibility for negligence. Condition 3(c) says that buyers must satisfy themselves as to the opinions expressed in the catalogue. I am, somewhat reluctantly, forced to the conclusion that Christie’s have made it reasonably clear that they have not assumed any responsibility to the buyer for the way in which the statements in the catalogue are prepared. In my judgment, a buyer at Christie’s, as a buyer at a car auction, must satisfy himself about the goods and cannot, in law, rely upon what Christie’s have said. The only right which a buyer has is that given to him by clause 11(b) where there is a forgery or where Christie’s have been guilty of deceit. I do not regard this conclusion as satisfactory because it means that a buyer has got nothing of substance for his premium.”
“Plainly this authority provides substantial ammunition for B&B Monaco to contend that they owed no duty of care to [the claimant] but, if English law applied, I would hold that he had surmounted the fairly low threshold of showing a reasonable prospect of success on this point for the following reasons. (a) But for the conditions of sale, there could be little doubt that B&B Monaco owed a duty of care. (b) The decision in De Balkany's case on whether Christie's owed any duty in tort was expressly obiter and moreover it would appear that the court was not addressed on the impact ofs 2(2) of the Unfair Contract Terms Act 1977 . (c) The conditions of sale in this case are not the same as Christie's in the case. (d) In particular, cl 3 is prefaced with the following: ‘whilst every effort has been made to ensure the accuracy of the description’. I think it is arguable that the exclusions of liability which ensue proceed on the assumption that every effort has indeed been made by B&B Monaco and that if every (reasonable) effort has not been made the exclusions are not to be effective to exclude a duty of care. It is right to bear in mind that these are B&B Monaco's conditions of sale, and they should be construed contra proferentem …”
“if the facts are not equally known to both sides, then a statement of opinion by the one who knows the facts best involves very often a statement of material fact, for he impliedly states that he knows facts which justify his opinion”
“If a contract contains a term which would exclude or restrict— (a) any liability to which a party to a contract may be subject by reason of any misrepresentation made by him before the contract was made; or (b) any remedy available to another party to the contract by reason of such a misrepresentation, that term shall be of no effect except in so far as it satisfies the requirement of reasonableness as stated insection 11(1) of the Unfair Contract Terms Act 1977 ; and it is for those claiming that the term satisfies that requirement to show that it does”
“I read these provisions as introducing a ‘but for’ test in relation to the notice excluding liability. They indicate that the existence of the common law duty to take reasonable care, referred to in section 1(1)(b), is to be judged by considering whether it would exist ‘but for’ the notice excluding liability. The result of taking the notice into account when assessing the existence of a duty of care would result in removing all liability for negligent misstatements from the protection of the Act. It is permissible to have regard to the second report of the Law Commission on Exemption Clauses (1975) (Law Com. No. 69) which is the genesis of theUnfair Contract Terms Act 1977 as an aid to the construction of the Act. Paragraph 127 of that report reads: ‘Our recommendations in this part of the report are intended to apply to exclusions of liability for negligence where the liability is incurred in the course of a person’s business. We consider that they should apply even in cases where the person seeking to rely on the exemption clause was under no legal obligation (such as a contractual obligation) to carry out the activity. This means that, for example, conditions attached to a licence to enter on to land, and disclaimers of liability made where information or advice is given, should be subject to control. . . .’ I have no reason to think that Parliament did not intend to follow this advice and the wording of the Act is, in my opinion, apt to give effect to that intention.”
“[The claimant] relies on the publication of the SIM [i.e. a Syndicate Information Memorandum] to give rise to the alleged duty of care. The relevant paragraphs of the SIM are not in my view to be characterised in substance as a notice excluding or restricting a liability for negligence, but more fundamentally as going to the issue whether there was a relationship between the parties (amounting to or equivalent to that of professional adviser and advisee) such as to make it just and reasonable to impose the alleged duty of care”
“The focus of course was the issue of liability for poor service rather than the scope of the service to be provided. Further the decision may have been somewhat overtaken by later decisions in regard to the assumption of responsibility and the move away from any ‘but for’ test in regard to the existence and extent of any duty.”
“terms which simply define the basis upon which services will be rendered and confirm the basis upon which parties are transacting business are not subject to section 2 of UCTA. Otherwise, every contract which contains contractual terms defining the extent of each party's obligations would have to satisfy the requirement of reasonableness.”
“(1) A person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence. (2) In the case of other loss or damage, a person cannot so exclude or restrict his liability for negligence except in so far as the term or notice satisfies the requirement of reasonableness. (3) Where a contract term or notice purports to exclude or restrict liability for negligence a person's agreement to or awareness of it is not of itself to be taken as indicating his voluntary acceptance of any risk.”
“In relation to a contract term, the requirement of reasonableness for the purposes of this Part of this Act [and]section 3 of the Misrepresentation Act 1967 … is that the term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made.”
“Had I found myself in Mr. de Tiesenhausen’s shoes in 2005, confident of the authenticity of [‘Odalisque’], I would not have actively sought out a Kustodiev expert to confirm what he believed himself. There was sufficient reason to be confident of the attribution to Kustodiev. In the absence of a universally acknowledged expert on Kustodiev in 2005 a specialist in those circumstances would not, acting reasonably, have consulted an expert about [‘Odalisque’]”