March 2023 by Lucy Grenfell & Laurens Kasteleijn for Art Law Services
Established in 1988, The European Fine Art Foundation (TEFAF) runs two fairs internationally each year, TEFAF Maastricht and TEFAF New York. TEFAF Maastricht (the “Fair”) covers 7,000 years of art history, showcasing masterpieces in every category of fine art. The Fair provides a unique opportunity for dealers from across the globe to showcase museum quality works to an equally significant pool of collectors. With such an extensive range of works on offer, the quality, authenticity and condition of the works must be second to none.
7,000 years of art history | 280 plus dealers | 22 countries | 74,000 visitors
TEFAF touts itself as a global art community; a difficult statement to refute. Featuring over 280 dealers from 22 countries, representatives from some of the most established museums around the world attend the Fair, including the Louvre, the Rijksmuseum, and the Museum of Fine Arts. The Fair takes place over the course of nine days, with two additional invitation-only days prior to the public opening.
Now to elaborate on 7,000 years of art history. Perhaps unsurprisingly given its origins, the traditional area of Old Master paintings is a constant at the Fair. Alongside antiques and classical antiquities, these works comprise approximately half of the Fair. In addition however, one can also find modern and contemporary art, photography, jewellery, 20th century design and works on paper.
It is evident why TEFAF is widely regarded as the world’s pre-eminent organisation for fine art, antiques, and design. With such esteem, scrutiny follows, and the role of the vetting committee emerges.
Vetting Process
The vetting process is central to the success of the Fair. Composed of international art specialists, selected on the basis of their integrity, independence and art expertise, the role of the committee is to decide on the admission of works of art to the Fair. With a fair of such scale and world renown, collectors expect a degree of legitimacy when it comes to purchasing. In the name of this legitimacy, the vetting committee assesses each work to be presented, so purchasers can buy with confidence.
In 2019, Wim Pijbes, Dutch art historian and emeritus General Director of the Rijksmuseum, was appointed as Global Chairman of Vetting for TEFAF. At the time, this was a newly created role established in line with TEFAFs developing vetting protocols. On the matter, Pijbes stated:
“Vetting is a pillar of this institution. It is fundamental to everything we do. Each year, our goal is to create an atmosphere of complete trust, transparency, and truth for buyers and therefore the fair as a whole.” He added, “If you are visiting a TEFAF fair and see a painting by Rembrandt, you can trust that it was painted by Rembrandt. The provenance will check out, and if a passage has been painted in, you will know it. The documentation will say so. Simply put: What you see is what you get.”
How exactly does TEFAF create such an atmosphere of complete trust, transparency and truth for buyers?
The vetting process begins six weeks prior to the Fair when all exhibiting dealers are required to submit their items to the Art Loss Register to be checked against their database of lost or stolen art. Then, two days prior to the Fair, the vetting committee gets involved. Consisting of 180 experts across 30 categories that have been divided into specialist groups, the members make their way around the Fair, systematically checking for accuracy and transparency against an extensive set of requirements pertaining to authenticity, condition and attribution. Once approved, the items are accepted for display. If an item doesn’t pass the vetting process, it will be removed from the fair.
In 2018, as a commitment to the integrity of its processes, TEFAF removed both dealers and auction houses from its vetting committees, to avoid any perceived conflicts of interest. Note that a provisional list of the vetting committee for the forthcoming Fair can be accessed at:
The vetting process is in place to maintain an environment where collectors can be confident that they are purchasing authentic works. But let’s consider what happens in the event that an item, for whatever reason, slips through the careful eye of the committee. This scenario, and its legal ramifications, will be considered from the perspective of the vetting committee and buyers alike.
Liability of vetting committee members
The main question to be answered in relation to committee members is whether they carry any liability for their role in the selection process. The TEFAF general terms and conditions for visitors are made publicly available on the TEFAF website and the two articles most relevant to this discussion are Article 2, and Article 10.
Article 2 provides for the role of TEFAF. It makes clear that TEFAF’s role is that of a facilitator, with the purpose of creating a favourable platform for both visitors and dealers, or participants, to the Fair. It also stipulates that TEFAF has no ownership interest in any of the works exhibited. Finally, it asserts that, through the vetting committee, TEFAF facilitates the selection of the participants permitted to exhibit art at the Fair, and uses reasonable efforts to contribute to the selection of the works of art permitted to be exhibited at the Fair. It is not, however, liable in any way for any act or omission attributable to a participant and/or with respect to the works of art exhibited at the Fair. Article 10 expands on this, providing that members of the vetting committee shall not be liable in any way for claims, actions, proceedings, losses, liabilities, damages, expenses and costs in relation to the description, quality, authenticity, attribution, provenance, title, condition and/or entitlement of any work of art that was brought to the the Fair and/or vetted by the vetting committee. This responsibility and liability remains solely with the participant and with the visitor buying a work of art/an object.
The nature of this responsibility and liability, and its restriction to the participant and visitor only, is no more evident than when a dispute arises. In a dispute unrelated to fakes and forgeries, a collector purchased two paintings from a dealer for 5 million euros at the Fair in 2018. On learning about recent auction results for the works, the purchaser concluded that he would not have paid the price he did for the works had he been aware of the auction history prior to purchasing, and sued the dealer. Though the issue in this case was a matter of value, it offers an example of how disputes arising at or from purchases made at TEFAF are handled. When a purchaser seeks legal recourse for a purchase made at the Fair, their avenue for doing so is through the dealer. TEFAF holds the role of facilitator only, and responsibility and liability for purchases made remain solely with the participant or visitor buying a work of art. This concept may be better illustrated by an example from another fair, Art Expo Malaysia. Art Expo Malaysia is the largest and most prestigious art fair in Malaysia. In 2011, a visitor purchased 13 paintings from the Singapore-based Dahlia Gallery. Seven of the 13 paintings were later assessed to be fakes, worth approximately $10,000, when they had been purchased for $700,000 and the purchasers proceeded to take action against the gallery. There are limited examples to speak to involving fakes and forgeries being purchased at TEFAF and resulting in legal proceedings. However, in accordance with the TEFAF general terms and conditions, if a situation analogous to that which occurred at Art Expo Malaysia were to take place at TEFAF, the visitor would bring a claim against the dealer in question, not TEFAF.
Buyers
London-based dealer in Dutch and Flemish Old Masters, Johnny Van Haeften, has been quoted as saying “An unvetted fair is caveat emptor.” It might therefore be reasonable to assume that collectors consider buying at the Fair (a fair with stringent vetting processes in place) a form of guarantee; of authenticity, contribution, attribution.
What are some key legal considerations for buyers to be aware of when purchasing at the Fair?
Firstly, is any due diligence required from the buyer prior to making a purchase? The short answer is no. Under Dutch law, there is no general obligation that requires a due diligence investigation from a buyer before making a purchase. Note that under Dutch law, a verbal purchase agreement is valid, although it is recommended that a contract is drawn up and signed prior to the purchase of any artwork or antiquity. Such an agreement should canvas purchase price, delivery, transfer of ownership, guarantees, jurisdiction and any additional information deemed relevant including originality, provenance, condition and measurements to name a few. When it comes to art, including warranties in the contract pertaining to authenticity and title is common. As a buyer, you cannot rely on any consistencies when, following execution of the agreement, you were aware of them and failed to notify the vendor.
After making a purchase at the Fair, you later learn that you’ve purchased a fake, forgery, or counterfeit work. So what remedies are available to you under Dutch law? Once you’ve discovered, or ought to have discovered, that what you purchased does not conform with the agreement (i.e., it is a fake, while the contract guaranteed that it was authentic), you have two months to notify the seller of the inconsistency. Poor- or non-performance by one of the parties will allow the other to avoid the contract. In the case of purchasing a fake, forgery or counterfeit, it is impossible to perform the contract and deliver the real work, and as such the buyer is in a position to claim for damages and/or avoid the contract. An exception occurs where a purchaser, at the conclusion of the contract, is aware of a lack of conformity or the conformity was reasonably known to them. An example of this may be where a buyer purchases a Rembrandt painting for 100 euros. The purchaser will not be able to claim damages or avoid the contact as, at that purchase price, the painting was clearly not authentic.
In the Netherlands, where non-conformity is evident and the purchaser has made a claim within the stipulated time frame, in most cases the agreement will be dissolved and the buyer may claim repayment of the purchase price and damages. Each case is different however, and the overriding principles of reasonableness and fairness will always apply. The court will thoroughly investigate the written agreement, any ancillary statements made, as well as the circumstances surrounding the sale and transfer of the work. Please note that Dutch law and case law on sale and purchase is extensive and complex and this text only provides a brief overview of the relevant legal considerations.
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