SPAIN Law and Practice Contributed by: Rafael Mateu de Ros, Patricia Fernández Lorenzo, Javier Fernandez-Lasquetty and Luis Rodríguez-Ramos, Ramón y Cajal Abogados
4. Authentication of Artworks 4.1 Posthumous Rights to Authenticate Artwork Under Spanish law, there are no specific regulations that determine who must or may carry out the authen - tication of artworks. The main parties that may have this authority include the following. • Legal heirs or the executor of the estate – if the artist left a will, the designated executor or heirs (estate/legacy) may assume the responsibility for authentication, especially if explicitly granted this authority and if included within their services. • Foundation or authentication committee – some artists establish a foundation or committee during their lifetime to manage their legacy and authenti - cate their works after their passing. • Experts and scholars – art historians, specialists in the artist’s work, or those compiling the cata- logue raisonné may be recognised as authorities in authentication. • The art market and auction houses – to determine authenticity, some galleries or auction houses rely on the opinions of experts, former representatives of the artist, or institutions that worked closely with the artist. As a result, it is common practice to include liability clauses regarding authenticity in art sale contracts, in accordance with the applicable Spanish regulations (see 4.3 Legal Remedies Following a Declaration of Inauthenticity ). 4.2 Art Authentication Under Spanish law, there is no specific regulation that compels a foundation – or any other entity or person entitled to exercise moral rights – to include a particu - lar artwork in the artist’s catalogue raisonné or to issue a favourable opinion regarding a certificate of authen - ticity. As stated in 2.1 Artists’ Rights Over Their Art , moral rights – as recognised under the Spanish Copy - right Law – grant the artist (and, after their death, their heirs), in general, the authority to protect the integrity and attribution of their works. However, these rights do not necessarily impose an obligation to authen - ticate or recognise a specific piece. Additionally, authentication decisions often fall within the discretion
of the entities or experts responsible for the artist’s legacy (among others), and conflicting opinions may arise within the art market. 4.3 Legal Remedies Following a Declaration of Inauthenticity In cases where purchased artworks are declared inauthentic after the purchase, the available civil rem - edies include the redhibitory action, the quanti mino - ris action, and the action for damages for breach of contract. These actions allow the buyer to rescind the contract, obtain a reduction in the price or claim dam - ages, respectively. • Redhibitory action – this allows the buyer to withdraw from the contract if the purchased item has hidden defects that render it unsuitable for its intended use or significantly diminish its value in such a way that the buyer would not have acquired it or would have paid less for it. This action is regu - lated by Articles 1484 et seq of the Civil Code. • Quanti minoris action – this action allows the buyer to request a reduction in the price paid for the item, proportional to the decrease in its value due to hid - den defects. It is also regulated by Articles 1484 et seq of the Civil Code. The applicability of both the redhibitory and quanti minoris actions depends on the nature of the defect and whether it was hidden at the time of purchase. • Action for damages for breach of contract – if the seller acted in bad faith, the buyer may claim com - pensation for the damages suffered. This action is based on Article 1101 of the Civil Code. To claim compensation for damages, the buyer must prove that the seller acted in bad faith, which can be a significant obstacle in practice. • Resolutory actions for breach of contract – accord - ing to Article 1124 of the Civil Code and the juris - prudential doctrine of aliud pro alio, the buyer may rescind the contract if the item delivered is entirely different from what was agreed upon. These actions are subject to different legal regimes and limitation periods, which is crucial to consider when taking legal action.
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