L'authenticité d'une oeuvre d'art, comparaison franco-angclaise (Authenticity of Works of Art: A Comparison between France and England)

Erreur in French law and mistake in English law have different aims. Erreur is interpreted broadly in order to ensure the parties’ consent. Conversely, mistake is narrowly defined, so as to ensure that contracts are valid. The Court of Appeal case of Great Peace (2002) has confirmed this difference in putting an end to the concept of mistake in Equity.

This opposition is obvious when illustrated by mistake as to the authenticity of works of art. If a party buys a painting mistakenly believing that it is genuine, he can rescind the contract in French law, since an erreur vitiates consent. Mistake as to the authenticity of a work of art is not a ground for rescission in English law. The subjectivity of consent is not taken into account. It is however possible to attain a similar result by other means, such as misrepresentation or breach of contract.

This example illustrates that any European harmonisation cannot be attained simply by harmonising concepts. It should be done by the definition of common contractual terms, as envisaged by the European Commission in its recent Action Plan on European contract law. Such a harmonisation would encourage a unified European art market.