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Framing Fiduciary Duty in Marchig v. Christie’s

Oral arguments that took place on June 24, 2011 at 500 Pearl Street, a.k.a. 2nd Circuit Court of Appeals could have been dealing with two unconnected cases. Richard Altman, attorney for Mrs. Jeanne Marchig, argued that in certain circumstances auction houses owe fiduciary duty to their regular clients lasting so long as the relationship between the consignor and the dealer continues, a proposition yet unsupported by extant case law on point. The court seemed unconvinced because of the long held belief that while an auction house is a fiduciary with regard to a particular painting during a discrete consignment arrangement, it does not provide continuous service akin to that of trustees and guardians. 

Joe Pattela, of Andrews Kurth LLP, defending Christie’s, was peppered with questions regarding the whereabouts of the frame that enclosed La Bella Principessa, a drawing now attributed to Leonard Da Vinci that Mrs. Marchig consigned to Christie’s in 1997, almost 15 years ago. The court wished to know when Mrs. Marchig found out that her drawing was sold out of the frame she provided and whether she was ever billed for the new frame. The factual possession of the frame may be a timely question for the jury to decide in a replevin action (as a reminder, the case was dismissed on grounds of statute of limitations in 2010), but the value of the frame is unlikely to exceed $75,000 to permit the case to remain in the federal court system.

Marchig v. Christie’s revolves around Christie’s alleged negligence and its erroneous attribution of a drawing Mrs. Marchig consigned for sale in 1997. Christie’s proffered that it was by an anonymous 19th century German artist. Mrs. Marchig indicated that it might have been an Italian Renaissance work. Ultimately, Christie’s attribution carried forward and the drawing was sold by Christie’s in 1998 in a frame that the auction house deemed better suited to its attribution instead of the Italian frame it came with from Mrs. Marchig. The original frame seems to have never been returned to Mrs. Consignor, who received $21,850 minus commission charges for the drawing.  

In 2009, Noel Annesley, now Chairman Emeritus of Christie’s, and a long-time acquaintance of Marchigs informed Mrs. Marchig about claims that the drawing was by Leonardo da Vinci. Currently the estimated value of the drawing is over $100 million. The attribution is based on technical analysis, which seems not to have been available in the 1990s.

For more information about attribution of La Bella Principessa read Martin Kemp’s account.