Legal challenge on the question of attribution: Auction conditions of sale to be tested in High Court

The challenge to the validity of their conditions of sale is to be made after Mr Justice Jack argued that it was a crucial issue for the art world that had not been dealt with by the courts before.

The case centres on the auction of a pair of gilt-bronze urns sold for £1.75m to Taylor Lynne Thomson, the daughter of leading Canadian collector Lord Thomson of Fleet.

The urns, catalogued by Christie’s as a pair of Louis XV porphyry and gilt-bronze two-handled vases designed by Ennemond-Alexandre Petitot, were sold on December 8, 1994 as part of the dispersal of the works of art from Houghton, the Norfolk family seat of the 7th Marquess of Cholmondeley.

Ms Thomson now argues that the urns were misrepresented and are in fact 19th century. She wants compensation or her money back and is suing both Lord Cholmondeley and Christie’s for breach of contract. Both defendants are to fight her claim. Lord Cholmondeley argues that the responsibility for the catalogue description lies with Christie’s, while Christie’s are expected to argue two points: that the urns are genuine 18th century originals; and that their conditions of business, as set out at the back of the Houghton catalogue, protect them from liability against any such claim.

It is any ruling on this last point that will be studied with most concern by the auction profession when the case comes to the High Court in March.

Miss Thomson is expected to challenge the fairness of Christie’s terms and conditions under the Unfair Contract Terms Act 1977. If the High Court were to rule in her favour on this point, auctioneers would not be able to rely on the existing convention of including a get-out clause under their terms and conditions. These state that catalogue descriptions, giving the provenance and condition of objects, are statements of opinion only and it is up to the buyer to satisfy themselves as to the validity of those statements.

• Auctions Law and Practice, the standard work by Professor Brian Harvey and Franklin Meisel, considers the subject of sale conditions and the Unfair Contract Terms Act in some detail. Two key factors the book discusses are the test of reasonableness in setting the terms and conditions of sale and the burden of proof on whether an object has been misdescribed or not.