Many thanks for a terrific ARCA conference last weekend!

Toby Bull demonstrating a fake antiquity in the first panel on Saturday

Here was the conference schedule and programme:

ARCA 2013 Annual Conference Programme

Yes, antiquities with good history are worth more

More anecdotal evidence this week that the prices paid for antiquities continues to reflect not only the intrinsic value of the object, but the quality of its history as well. Unprovenanced objects are not selling. Souren Melikian reports on the importance of a pre-1970 history for antiquities at recent auctions in Paris:

At Pierre Bergé on May 29, an Egyptian portrait painted in encaustic on panel of the type conventionally associated with the Fayum area rose to €1.46 million, or nearly $2 million, paid by the Metropolitan Museum of Art. The portrait, datable to the years 54 to 68 A.D. on the basis of the hairdo, was owned by a European collector as early as 1968. A week later, it was the turn of Boisgirard-Antonini to score with Egyptian art. The wooden mask of a woman, with its ancient polychromy unfortunately altered by heavy waxing, realized 10 times the estimate, at more than €75,000. It had surfaced in the Paris trade in June 1912. Two lots down, the star piece in the sale, an Egyptian torso of the fourth century B.C. more than tripled its high estimate as it went over €2.26 million. Hieroglyphs carved on the back name a prince who was the governor of Upper Egypt. The inscription was debated at length in three separate German publications before World War II. At the end of a sustained bidding match, the room broke out in applause. The contrast with the dead silence that greeted scores of bronzes, some very fine, from ancient Afghanistan, Iran, Iraq, Yemen and other areas was striking. None were documented and the majority remained unwanted at low prices ranging from €1,000 to €5,000 euros. In five to 10 years, these hot potatoes may not even make it to the auction rooms.

1. Souren Melikian, Antiquities, With a Proven Record, Drive Auction Market, N.Y. Times, June 14, 2013, http://www.nytimes.com/2013/06/15/arts/15iht-melikian15.html.

Will the Statute of Frauds Crack the Art Market’s Shield of Anonymity in New York?

The Jenack Auction house, outside Chester, NY

In his seminal 1982 article, Harvard Law Professor Paul Bator noted that the art trade is shrouded in mystery. In the thirty years since Bator examined the international art market, little has changed with respect to the basic information which is made available when works of art are bought and sold at auction. Auction house catalogues typically include little more than a cursory “this work is from a private collection”. That may change, at least in New York when the State’s highest court will take up a recent auction dispute.

In September of 2008, a 19th century “fine Russian silver/enamel covered box with gilt interior” was slated to be auctioned by the William J. Jenack Auctioneers. Prior to the auction, the auction house received an absentee bid from Albert Rabizadeh. This absentee bidder’s form included Mr. Rabizadeh’s name, phone number, address, email address and credit card number. The defendant was assigned bidder number 305 as indicated on his form, and his bid for a price of $400,000 was the winning bid for the antique box. This dispute arose, as so many of them do, when the winning bidder refused to pay for the antique. Auction houses rely on the binding nature of these bids in conducting their business, so it should come as no surprise that the Jenack auction house brought a suit against the allegedly derelict bidder. The low of contract might ordinarily be sufficient to require Mr. Rabizadeh to pay the asking price. At the initial trial Mr. Jenack successfully sued and the trial court held Rabizadeh was required to make good on his winning bid. However a well-established principle of English and American law, the statute of frauds requires that certain agreements be reduced to writing. And the district court ruling was overturned on appeal.

The Earl of Nottingham authored the Statute of Frauds in 1677

The statute of frauds was called an anachronism as far back as 1928 in an influential article appearing in the Indiana Law Journal. The Statute itself was passed by Parliament in 1677 and has been adopted by statute or common law by most American states. The statute of frauds has a simple purpose: to prevent any fraud caused by perjury. In essence ensuring that the legal system would wrongfully not enforce certain important legal agreements. These included: conveyances of land (what lawyers call real property); trusts; wills; and certain contracts which were made in consideration of marriage, contracts which couldn’t be performed within one year, or contracts for the sale of goods which exceed a certain value.

Under New York’s version of the Statute, if the disputed goods are sold at a public auction, an auctioneer can satisfy the statute of frauds if the auctioneer at the time of the sale enters into the sale book the nature of the object sold, the sale price, the name of the purchaser, and the name of the person on whose account the sale was made. In the Russian box auction, Mr. Rabizadeh’s name was not reduced to writing.

Mr. Rabizadeh successfully convinced a four judge panel of the New York appellate court that the law requires the name of the purchaser be in writing, and the incomplete paperwork by the Jenack auction house did not comply with the New York Statute of frauds. At present the case is pending before New York’s highest appellate court, and the court has two likely options to choose from. First, the court could hold that the auction house could have complied with the Statute by merely requiring a signature on the bidders form, which would have collectively created a sufficient body of written evidence that could have successfully prevented a perjury in this case. The court could look to the origins of the Statute and hold that this extra information would be sufficient to prevent perjury.

But the second, less likely option could have far-reaching consequences for the art market. The court may decide that buyers could back out of any purchase where the name of the buyer or seller is not provided. That would quickly remedy the anonymous buyer and seller problem in the art market. And with one simple decision—that this auction house initiated to punish a reluctant buyer—the art market in New York could be dramatically changed. 

(this editorial appeared in the Spring 2013 edition of the Journal of Art Crime).

Federal agents have seized $100m from Subhash Kapoor

Jason Felch reports that Federal agents have seized a whopping $100 million in art in the past couple years from Subhash Kapoor. Kapoor, an American citizen, is subject to potential criminal charges for dealing in looted and stolen art: a pending criminal trial in India; and he may be prosecuted in the United States as well.

Felch reports on the staggering number of esteemed Museums which have purchased material from Kapoor since:

Since 1974, Kapoor and his Madison Avenue gallery Art of the Past have sold or donated ancient art to the Metropolitan Museum of Art in New York City, the Los Angeles County Museum of Art, the Norton Simon Museum, the Asian Art Museum of San Francisco, the Art Institute of Chicago, the Toledo Museum in Ohio and others. Abroad, his clients included the Musée des Arts Asiatiques-Guimet, Paris; the Museum f¿r Indische Kunst in Berlin; the Royal Ontario Museum in Toronto; the Asian Civilisations Museum in Singapore; and the National Gallery of Australia. To date none of the museums has been accused of possessing stolen art or conspiring with Kapoor. Several have acknowledged having objects from Kapoor but declined to comment on the ongoing investigations.

 This is a staggering array of objects and some very fine Museums.

The piece demonstrates how integral federal forfeitures are in policing the art and antiquities trade in the United States. Whether all that art will be repatriated to Southeast Asia remains to be seen, but the institutions which have material which passed through Kapoor would be wise to start preparing a strategy for the inevitable questions which will arise. Right now he looks to be as big an alleged antiquities smuggler as any of the names we've seen deal in art from Europe or even some of the notorious dealers in looted Mediterranean antiquities.

1. Jason Felch, Feds pursue Manhattan art dealer suspected of smuggling, L.A. Times, June 11, 2013, http://www.latimes.com/entertainment/arts/culture/la-et-cm-asian-artifact-smuggling-20130611,0,3469733.story.