GERMANY Law and Practice Contributed by: Tanja Schienke-Ohletz, Flick Gocke Schaumburg
priate documents (eg, export licence, certificates of origin). German sales law does not apply to international art sales; instead, the UN Convention on Contracts for the International Sale of Goods (CISG) applies if the buyer and seller are based in contracting states and no other choice of law has been made. The CISG regulates in particular the rights and obliga - tions of the parties, warranty and transfer of risk, but does not contain any provisions on the protection of cultural property or export licences. In an international case, the seller must obtain the licence. The buyer should ensure that the licence and export permit are also available. 6.3 Gallery and Auction House Liability for Fake Art When it comes to the responsibility of auction houses for counterfeit works of art, it depends on the parties to the contract. Regardless of any contract, auction houses may be liable for tort (damages). In short, auction houses are liable for fake art if they violate their duty to examine, act fraudulently or pro - vide a guarantee. However, with careful examination and effective warranty exclusion, liability is excluded. Contractual Liability If the auction house acts as a contractual partner in the same way as a seller, it is liable in the same way as a seller for material defects, in particular if a charac - teristic (eg, authenticity) has been expressly guaran - teed or a warranty has been given. In practice, auction houses usually exclude any warranty of authenticity. As with other persons, such an exclusion is valid unless the auction house acts fraudulently or provides a guarantee. Tortious Liability If the auction house can be proven to have intention - ally or negligently misrepresented the authenticity of the artwork at the time of sale, for example, a claim for damages may be considered. Liability for negligent acts may be considered if the auction house violates
its duty of care, for example by failing to conduct a sufficient examination of authenticity despite recog - nisable doubts. As a rule, reputable auction houses examine the authenticity of the artworks that are put up for auction. Gross negligence even exists if an art historian fails to recognise a forgery, even though this would have been possible with careful examination. 6.4 Pre-Sale Checks for Auction Houses and Galleries Auction houses are commercial enterprises and are licensed as such by the trade licensing authority. According to the German Trade Licensing Act, auc - tioneers must act in a particularly knowledgeable, conscientious and impartial manner. This includes the obligation to verify the authenticity, origin and condi - tion of works of art to the best of their knowledge and to provide an accurate description in the auction catalogue. The specific duties have been established in case law. Auction houses must carefully examine the works of art they wish to put up for auction, in particular with regard to authenticity and provenance. This must be done independently – ie, on the basis of their own research. The higher the value of the work of art, the more intensive the examination obligation. In case of justified doubts, the auction house is also required to consult an expert to be sure. The auction house must also ensure that the cata - logue information is provided to the best of its knowl - edge and belief and that no misleading or inaccurate information is provided. In the event of a legal dis - pute, the auction house must prove that the relevant inspection and due diligence obligations have been complied with. 6.5 Role and Responsibilities of an Art Adviser There is no typical regulatory framework for an art adviser, who will usually advise their clients on the pur - chase of art and thus act as an adviser. They conclude a service contract and provide the services defined therein.
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