PORTUGAL Law and Practice Contributed by: João Valadas Coriel, Sofia Quental, António Vieira and Inês Grácio, Valadas Coriel & Associados
Opinion Regarding a Certificate of Authenticity No Portuguese law or regulation forces an entity to confirm the authenticity of a disputed artwork. The decision to authenticate an artwork remains a mat - ter of expert judgement and intellectual discretion. Therefore, if an artwork is excluded from a catalogue raisonné or an authentication is denied, the entity can - not be compelled to reverse its decision unless there is clear evidence of arbitrary or bad faith conduct. Notwithstanding the foregoing, entities issuing authentication opinions may incur civil liability in cases of manifest error, negligence, conflict of interest or breach of contractual or fiduciary duties, particularly where their determinations have a significant econom - ic impact on the artwork’s value. 4.3 Legal Remedies Following a Declaration of Inauthenticity The main legal frameworks that address civil remedies pertaining to the selling of inauthentic artworks are the Portuguese Civil Code and the Consumer Protection Laws. The applicable civil remedies shall depend on whether the seller acted in good or bad faith, and whether the sale was made by a professional dealer, auction house or private seller. If the buyer is a non-commercial private consumer (ie, individuals acting outside their trade, business or profession) buying from a professional seller, they are entitled to the remedies provided in the consumer law, such as a refund, replacement or compensation if the artwork is declared inauthentic after the purchase. In the remaining situations that are not covered by consumer law protections, civil remedies can be claimed under general rules of contract law, such as the following. • Rescission, through which a contract may be can - celled and a refund requested. • Liability for the breach of contract: claims for damages arising from non-compliance with the agreement’s contractual terms. In agreements involving auction houses or art dealers, buyers can usually also rely on authenticity guarantees. Non-
(such as a foundation) and/or collective manage - ment organisations, which are responsible for preserving and enforcing these rights until the work enters the public domain, which typically occurs 70 years after the artist’s death; • the Portuguese state, which assumes this role once the artwork falls into the public domain, ensuring its authenticity, integrity and proper attri - bution in accordance with cultural heritage regula - tions; • the Minister of Culture, who has the authority to intervene before the artwork enters the public domain if its authenticity or cultural dignity is at risk, particularly in cases where the artist’s heirs or legal successors fail to act despite being notified; or • the DGPC and other institutions responsible for national collections, including museums and archives, when an artwork is classified, or is in the process of being classified, as cultural heritage. 4.2 Art Authentication As a general rule under Portuguese law, neither a foun - dation nor any other entity or person entitled to exer - cise moral rights can be legally compelled to include a specific artwork in an artist’s catalogue raisonné, nor to issue a favourable opinion regarding a certificate of authenticity. However, legal recourse may be available under specific circumstances. Catalogue Raisonné In Portugal, a catalogue raisonné remains a scholarly listing that is not regulated by law, rather than an offi - cial register or a legally binding document. Moral rights grant the holder the right to determine whether an artwork should be included in such a pub - lication. However, if a dispute arises, a court ruling could compel the recognition or exclusion of an art - work from a catalogue raisonné , particularly in cases involving misrepresentation or bad faith exclusion. However, if a foundation or entity exercises copyright over an artist’s work, it may be legally required by a court decision to recognise a disputed artwork if strong evidence supports the authenticity thereof.
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