USA – FLORIDA Law and Practice Contributed by: Diego R. Figueroa Rodríguez, DLA Piper
4.3 Legal Remedies Following a Declaration of Inauthenticity Various remedies are available under tort and contract doctrines, including fraud, mutual mistake and mate - rial misrepresentation. These remedies may include monetary damages, restitution, or rescission of the transaction. The Florida UCC Article 2 of the UCC (Chapter 672 of the Florida Stat - utes) governs the sale of goods such as artworks and includes express and implied warranties relevant to these transactions. Express warranties arise from the seller’s statements, including affirmations of fact, promises and descrip - tions of the artwork. For example, when a seller claims an artwork was created by a specific artist, this consti - tutes an express warranty regarding the authenticity. Implied warranties have been outlined below. • Warranty of title: Historically, buyers bore the risk of poor title under the common law doctrine of caveat emptor; however, the UCC stipulates that, unless excluded or modified, every sales contract con - tains a warranty of title. This warranty is breached if the seller lacks good title or authority to transfer the artwork. • Warranty of merchantability: Goods must be fit for their ordinary purpose, conform to descriptions or affirmations on containers or labels and pass without objection within the trade. This applies specifically when the artwork is purchased from merchants such as art dealers and auction houses, providing recourse in cases involving inauthentic works when the purchaser can show that the art - work does not conform to its description. • Warranty of fitness: If the seller is aware of the buyer’s reliance on their expertise and the buyer’s intended use of the artwork, this warranty offers protection for buyers seeking specific pieces for particular purposes. These warranties may generally be disclaimed in writ - ing and apply to sales of goods valued at USD500 or more, evidenced by written documentation.
Florida Statute 672.721 states that, in cases of mate - rial misrepresentation or fraud, all available Article 2 remedies for non-fraudulent breach remain applicable. Additionally, the act of rescinding or seeking rescis - sion of a sale contract (or rejecting or returning goods) does not preclude nor is it inconsistent with pursuing damages or other remedies. Florida’s Express Warranty of Authenticity From Art Dealers Under Florida Statutes 686.501–506, when an art dealer provides a written description and author iden - tification to a purchaser (other than another art dealer), this establishes an express warranty of authenticity for the transaction. The absence of formal words like “warrant” or “guarantee,” lack of intent or author - ity, or statements deemed to be the dealer’s opinion do not negate this warranty. However, the degree of authenticity is affected by terms used, including “by,” “attributed to,” “of a school of,” or “from the period.” Attempts to disclaim authenticity warranties are only valid if interpreted reasonably and substantiated by external evidence. Limitations are ineffective if: • the disclaimer lacks prominence, is not in writing, is not placed separately from warranty language, or fails to unambiguously state that the seller assumes no responsibility for authenticity; general disclaimers such as “all warranties, express or implied, are excluded” are insufficient; • the item is counterfeit and this was not made clear in its description; or • the work is described unconditionally as by a cer - tain artist, period, or edition, but the statement is inaccurate at the time of sale. If an art dealer guarantees authenticity in good faith, liability is limited to refunding the received price plus attorneys’ fees and costs if compliance is refused. Dealers in violation may face misdemeanour charg - es. These rules do not apply to works sold for under USD100 or to direct artist-to-consumer sales outside dealer involvement. Consumer Protection Rules Buyers are further protected by consumer statutes such as the Florida Deceptive and Unfair Trade Practic -
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