In the history summarized above, we have seen that paintings are hemmed in by scientific, legal and economic measures and practices. It could be said that science, the law and the market all contribute, in their own way, to defining the nature of any specific painting. Science contributes by authenticating works, the law by stating the ‘substance’ of the object in question in the context of commercial exchanges (and which owner they belong to), and the market by indirectly fixing the status of works because of the very strong link between the hierarchy of prices and the hierarchy of pictorial values.
Science, the law and the market establish the status of an object or, in cases where this has already been established, help to reinforce it. This is achieved by resorting to objective methods used to produce a truth about the world (science), by making official and reinforcing decisions or verdicts guaranteed by the State (law), by the fascination exerted by the market in attributing very high economic values to objects which may have been ignored, neglected or badly treated over a long period of time and which are sometimes still controversial (the market).
The power to define the world, to state the place and the relative value, within hierarchized structures, of people, of things and of situations, is the power to say what kind of treatment these people, things or situations deserve, or what attitudes should be held towards them. It is the role of academic, scientific, legal or economic institutions just to state or to pronounce verdicts, to establish facts or to categorize, exclude or include, to the delight of some (well classified, well perceived, respected) and to the despair of others (poorly classified, poorly perceived, denigrated). By requiring science to vouch for the signs of its authenticity, by making legally designated experts say that it is an autograph work, or a work by an old master, and then by buying the painting at an impressive price, we are helping to transform an insignificant or secondary object into an artistic masterpiece worthy of being hailed with all due honours, of being conserved, protected, discussed, envied and admired. But in the context of ‘a place for everything and everything in its place’, the qualification of some automatically means the downgrading or the disqualification of all other rival objects which were candidates for the same place.
The two principal canvases competing for the status of autograph work, the ‘Piasecka-Johnson’ version and the ‘Pardo-MBA de Lyon’ version, were each subjected to various tests in major analysis laboratories on both sides of the English Channel. From each side, arguments abounded in favour of each of the two versions. In both cases, the study of pigments and of the canvas confirmed the fact that the paintings were not painted later than the seventeenth century, revealed the presence of pentimenti, which supports the hypothesis of an original work (as the copyist was looking at a finished painting, he would have been in no doubt about the picture he was to produce, unlike the person creating it in the first place who could add or remove various elements) and, in both cases, the laboratories concluded that there was nothing to stand in the way of the hypothesis to the effect that the painting could be an autograph work. Nothing, that is, except for the fact that historians are convinced that Poussin would never have painted the same painting twice and that consequently their debates are focused on which painting is the right version and not on establishing if both pictures could be by the hand of the same painter.
A further look at the various arguments shows that the rival parties are more anxious to furnish proofs of the authenticity of the painting they are defending than to systematically unpick or contradict the proofs put forward by the opposing party in defence of their own canvas. The standpoints adopted therefore have more to do with the desire to defend a painting than to discover the truth relating to both or all the paintings present. An external observer, such as the sociologist, who – need it be stated – resists siding with any one camp, can only underline the absence of properly regulated debates and arguments and the contradictions sometimes hidden in the arguments.
If we simply take the case of the pentimenti, which are usually an indication for art historians of a creator at work and modifying his work as he goes along, the experts all insist on their presence in the two canvases (although more so, it would appear, in the ‘Pardo-MBA de Lyon’ version than in the ‘Piasecka-Johnson’ version). But, focusing exclusively on the idea that pentimenti are inevitable proof of the original nature of the canvas, they end up forgetting that Poussin has been characterized as a very careful and precise painter in the preparation of his canvases, a painter who, precisely, did not generally need to alter or rework. As we have seen, the painter in fact used wax figurines which he arranged in a sort of box. He would position them, giving them the poses or postures required, dress them with dampened paper or scraps of fine cloth and experiment with the play of light and with the shadows cast by the figures. Thuillier himself wrote about this in 1994, outside of the controversy, in a text which set out to show the limitations of any contributions from the scientific analysis laboratories in the case of a painter like Poussin. He wrote about the painter in these terms: ‘He thought for a long time about the arrangement of the painting and the positioning of the figures: for him this was the essential phase […] Any reworkings are relatively rare. […]. This creative method leaves little scope for X-ray investigations.’1 In Poussin’s case, laboratory examination ‘reveal only the most minimal pentimenti of ambiguous significance’.2 Thuillier even specifies that this technique of extremely carefully thought-out work, this very precise preparation for the composition of the painting ‘is that of his maturity’, exactly the period during which The Flight into Egypt is supposed to have been painted.
The rarity of pentimenti in Poussin’s work is emphasized by Madeleine Hours. In 1960, in the catalogue of the exhibition of Poussin paintings, the head of the Louvre’s laboratory confirmed the careful preparatory work indicated by historians: ‘The work put into preparing the compositions is also confirmed by the fact that the majority of X-ray films only very rarely show up a pentimento, and few alterations. Mastery of painting technique would not in itself be enough to explain this sureness of brush strokes if some preliminary work on composition had not been done.3 In 1964, she reaffirms this absence, characteristic of Poussin’s work: ‘In Poussin’s work, second thoughts and transformations are rare.’4 A few reworkings are perceptible, essentially in paintings of his youth.5
The comments made by Thuillier and Hours seem to have been totally forgotten in discussions about the rival paintings. On the contrary, commentators were constantly in quest of pentimenti. In 2007, the Centre de recherche et de restauration des Musées de France (C2RMF) pointed out the presence of a further two pentimenti in the ‘MBA de Lyon’ version: ‘The discovery of a pentimento with respect to colour in the ochre garment of the figure of the reclining youth and probably also in the green cloth draped over the donkey painted over an ochre undercoat, will reinforce the case for the original status of this painting in comparison with that of the painting from the Johnson collection by verifying that these two modifications are absent in the latter case.’ And in this way, proof is sought that could only indicate a creator at work: ‘Finally, the discovery of two pentimenti relating to colour appears to be a determining factor in confirming the autograph character of the painting.’6 By pointing out the pentimenti, which turn out to be finally very numerous in the ‘Pardo-MBA de Lyon’ version, it is easy to gradually lose sight of the figure of the reflective and meticulous artist who rarely needed to resort to retouching his work. But let us go back to the history of the experts.
In 1987, an expert’s report, drawn up by the chemist and research technician, Karin Groen,7 was produced by the Hamilton Kerr Institute of the University of Cambridge (Fitzwilliam Museum) on the painting published by Blunt in 1982. The analysis was based on observation with a microscope with a magnification of forty times, the use of X-rays, the study of seven samples under microscope (× 1000) and electron microscope, as well as chemical tests. The report noted that the zone above St Joseph’s head was a ‘pentimento’ and the analysis of the pigments used in the painting revealed the use of a ‘Naples yellow’, a relatively unusual colour but already identified in certain canvases by Claude Lorrain and Nicolas Poussin. It concluded on a prudent note by broadly saying that there was nothing to challenge the hypothesis that the painting was from the seventeenth century. Blunt’s initial attribution of the painting to Poussin was therefore strengthened by its session in the laboratory.
Then, between 1987 and 1994, a second analysis of the ‘Piasecka-Johnson’ version was carried out, this time by the laboratories of the prestigious National Gallery in London, under the supervision of Dr Ashok Roy. Radiography and two samples were used to enable transversal sections to be examined. It was only in March 1997 that the results of these analyses were made public by Sir Denis Mahon, during an exhibition in Monaco, in the Chapel of Visitation. The ‘Piasecka-Johnson’ version was exhibited in a collection of twenty-five works of religious art from the collection of the wealthy heiress. The context of the attribution was, however, no longer the same after the death of Blunt in 1983, and the appearance of a second version of the painting in Versailles in 1986, which was published as an autograph work by Thuillier in 1994. The exhibition, the public speech and the publication of the catalogue therefore represented a counter-attack to Thuillier’s attribution and an attempt to regain the upper hand.
In the ‘Foreword’ to the catalogue,8 Barbara Piasecka-Johnson thanked Prince Rainier and his son and stated that the ‘moving painting’ representing a Flight into Egypt was evidently by Poussin’s hand, describing it as a work which had been painted ‘at the end of his life’. She pointed out that this was the first time the work has been shown to art lovers and that ‘it is important that this work from [her] collection should now be known because, a few years ago, another version of this composition had turned up and had been claimed as an original’. As a result, she had asked Sir Denis Mahon, ‘a long-standing admirer of the French Master’, to carry out an ‘in-depth study’ of a painting which he had been familiar with ‘for more than ten years’ and which he considered ‘as the fascinating fruit of Poussin’s genius in the late years of his life’. After this mention of a major name from amongst the known Poussin experts (Sir Denis Mahon), it was then the turn of the National Gallery in London to be thanked for having ‘agreed to subject the painting to scientific tests’ under the scientific supervision of Dr A. Roy. The eye of the great British connoisseur backed up by the objectivity of scientific analysis.
In his report, Mahon began by recalling the evidence, written and engraved, indicating the existence of a painting on the theme of the Holy Family fleeing into Egypt, painted by Poussin towards the end of his life. These included Félibien’s biography of Poussin, the engraving by Pietro del Po, the manuscript of Chantelou’s journal with his account of a viewing of paintings by Poussin with Gian Lorenzo Bernini on 10 August 1665. Mahon reminds his audience that the painting was considered lost until 1982, when Sir Anthony Blunt published the painting now exhibited in Monaco and not yet owned by Barbara Piasecka-Johnson. Another painting representing the same scene (the ‘New York’ or ‘Wolf’ version), which had never been published, appeared during the same period without ever really being considered as a serious rival in terms of authenticity. Then, in 1986, a third version had appeared (the ‘Pardo-MBA de Lyon’ version).
He began by telling the story of the ‘Piasecka-Johnson’ version, sold in 1976 by lieutenant-colonel Stefan Zamoyski, a count from a Polish family, who had served in the allied forces during the Second World War. Zamoyski claimed that his family had acquired the painting at the beginning of the twentieth century and that it had originated from a Russian collection belonging to the Princess Schachovskoy. At the beginning of the 1980s, the painting was put in the hands of a well-recognized restorer from the National Gallery of Art in Washington for cleaning and restoration. Mahon said he had seen it for the first time in 1985, at an Italian dealer’s, and that in his view Blunt had been right to consider it as an autograph work. Two years later, he was nevertheless approached by the Pardo brothers who sent him a black and white photo of the version they owned. From the photo, the authenticity of the painting seemed to him ‘debatable’. He saw it again in 1989, during the exhibition at the Pardo Gallery, ‘and concluded that it definitely could not be by Poussin’s hand’. In March 1989, Barbara Piasecka-Johnson bought the painting and contacted Mahon to inform him and to ask him to confirm its authenticity. It was at that point, as we have recounted in detail earlier, that she suggested bringing together the three versions (the New York one, the one belonging to the Pardo brothers and her own) in a room at the Ritz Hotel in Paris on 13 March 1990. He was there, along with Jacques Thuillier, who confirmed his choice of the Pardo brothers’ version, but only after a confusion over the ‘New York’ and ‘Piasecka-Johnson’ versions. In his report, Mahon implied that Pierre Rosenberg was not present, because of the duty of confidentiality (in the context of his role as a high-ranking official). He also pointed out that he saw the two principal paintings again the next day for two hours and wrote: ‘This experience fully confirmed my first conclusions.’ According to Mahon’s presentation of the facts, it seems clear that he was the person who saw the rival versions for the longest amount of time and in the most propitious circumstances.
He continued his account by referring to the parts of Blunt’s article which he considered to be the most pertinent. First of all, there was a pentimento situated above Saint Joseph’s head. The existence of this pentimento was a proof, according to him, that ‘the painting is unlikely to be a copy’. The scientific analysis, included in the appendix, confirms this point. There is also the matter of the hesitant brush strokes, characteristic of the last period of Poussin’s work. But the British archenemies, who had regularly clashed throughout their careers, would not be content to simply be united. Mahon seized the opportunity to mention a personal victory over Blunt over the dating of certain paintings: ‘Because he had failed to pay attention to the way in which a painting had been executed, beyond the general effect of its composition, on one or two occasions, Blunt had suggested a later date for a picture where the execution alone meant it could only have been painted many years earlier.’ And he noted on this occasion an error of a similar type made by Thuillier on the subject of another Poussin painting (The Testament of Eudamidas).
Following this, he referred back to Thuillier’s article, published in 1994, praising his qualities of historiographic precision, but regretting his decision to take a stand in favour of the ‘Pardo’ version. ‘It is however deeply disturbing that the climax of a much-awaited paper – the first to be written – on Serisier’s role as a collector, should be the expression of Thuillier’s opinion that the Versailles-Pardo version of the composition intended for Serisier could have been painted by Poussin himself.’ Mahon pointed out that Thuillier does not, in the course of his argument, refer to the pentimento on the version defended by Blunt. Furthermore, he emphasized the mistake made by Thuillier, who had clearly confused the painting belonging to Barbara Piasecka-Johnson with the one which had been unanimously rejected (the ‘New York’ version). Indeed, Thuillier had written in his 1994 article: ‘three examples have reappeared. One of them has been published by Blunt himself, who proclaimed the rediscovery of the original painting. But the quality of this work immediately seemed doubtful and, very soon afterwards, a second version, identified in America, was acquired for a well-known collection. Finally a third example turned up in an auction sale in Versailles.’9 Mahon, spotting a breach in the enemy line, charged into it: ‘To judge from what he wrote in 1994, it seems that he was mistaken about the New York painting (obviously a copy of mediocre quality) which he took for the one published by Blunt, whilst taking Mrs Johnson’s painting, of smaller dimensions than the other two, for an unpublished novelty, not worthy of even being taken into consideration.’
Knowing that Thuillier had been caught red-handed in his confusion over the two canvases, which had meant he had not given full attention to the version defended by Mahon and Blunt, Mahon took malicious pleasure in quoting the extract where Thuillier claims that ‘it is the eye that matters’. (‘In the last resort, whatever the claims and the silences of catalogues and inventories, the eye is the only judge.’10) If the eye did indeed matter, it still needed to be turned on the right painting, Mahon seemed to be pointing out somewhat maliciously. If he had really looked properly at Mrs Piasecka-Johnson’s painting, Mahon tranquilly explains, Thuillier would probably not have had such a different opinion from his own: ‘It would seem therefore that there is a fundamental divergence between what he and I see in these two paintings (which, I dare to hope, would have been considerably less had he observed more closely and paid more attention to the one exhibited here).’
With Rosenberg, ‘unfortunately’ not in a position to compare the paintings,11 and with Thuillier, a shrewd commentator on the historic context of the commission but guilty of some errors on dates and of failing to give Barbara Piasecka-Johnson’s painting a sufficiently detailed consideration as a result of confusing it with the ‘New York’ version, and the owners of the version defended by Thuillier and Rosenberg who ‘had not taken up the opportunity to exhibit it in Monaco’ and who ‘had not wanted to allow any reproductions of their painting’ in connection with publication, the field was therefore more or less clear for Mahon to put forward his arguments in favour of the authenticity of the painting belonging to Barbara Piasecka-Johnson.
Mahon began first of all with a hypothesis on the origins of the ‘Pardo’ version. Recalling Bernini’s disappointment over the canvas painted by Poussin, he suggested that others must have had similar reactions to it and that the ‘Pardo’ version was therefore a copy responding to the tastes of the time: ‘One could argue that it was to satisfy this point of view, this taste, that the painting in the Pardo collection was probably painted.’ And the differences between the two canvases would therefore be explained by the desire of the copyist to ‘render certain elements closer to the conventional taste’. Such as the colour of the Virgin’s face, for example. The ‘Piasecka-Johnson’ version depicts a very dark face ‘with a tone which gives an almost Negroid impression’. For Mahon, this was a clear sign that the original was indeed the ‘Piasecka-Johnson’ version. On the one hand, this reinforces the hypothesis according to which this feature would have been ‘rectified’ by the copyist at the request of the person commissioning the work, ‘giving the Virgin a beautiful rosy complexion’ and ‘“embellishing” the Baby Jesus as he saw fit’. The idea of making the figures of the Virgin and of Jesus more acceptable points more towards a copy. On the other hand, and the argument is even stronger here, Mahon questioned the notion that the ‘Piasecka-Johnson’ version could be simply a copy of the original ‘Pardo’ version: ‘If someone had copied the painting belonging to the Pardo brothers, as Thuillier apparently believes to be the case, is it likely that he would have taken the liberty to exchange the beautiful complexion of the Pardo virgin for the considerably darker one that actually features in this version?’ Unless this was the work of an original and independent copyist, seeking to add what, considering the era, would be a somewhat questionable touch, the order of original and copy would seem to indicate a direction going from the ‘Piasecka-Johnson’ version to the ‘Pardo’ version rather than one going from the latter towards a more ‘original’ version.12
Mahon then noted the attention with which the secondary figure of Saint Joseph and the donkey had been painted, describing how ‘neither of them have that one-dimensional and lifeless look of the same figures (this is particularly clear in the case of the donkey) in the Versailles-Pardo version, where the copyist seems not to have taken the trouble to add these subtle nuances that Poussin has introduced in the play of light in order to suggest structure’. He also pointed out the rocks situated in the right-hand background, which are more subtly rendered in the ‘Piasecka-Johnson’ version than in that of the Pardo brothers (‘it looks like a simple and monotonous background made out of cardboard, something which would be more appropriate in a theatrical décor’). The foliage to both the right and the left of the painting is also less finely painted in the ‘Pardo’ version: ‘The fact that he did not linger over the details of what must to him certainly have seemed a marginal aspect of his work, is typical of the attitude of a copyist.’ As in the matter of the complexion of the Virgin’s face, Mahon wonders what kind of copyist would allow himself to be more precise than the original, ‘to be “more catholic than the pope” by adding characteristics “à la Poussin” which the master himself had not included’.
Other points were raised, among them the drawing of the spear, and the open mouth of the young man resting beside the path, and who, according to Mahon, is a reference to the biblical character who guides Mary and Joseph in their flight. Mary would be turning towards him to bid him farewell and the open mouth in the ‘Piasecka-Johnson’ version (and not in the ‘Pardo’ version) would indicate this relationship, overlooked by a copyist ignorant of the subtlety of the biblical narrative. The figure of the resting youth is also clearer in the ‘Piasecka-Johnson’ version and less carefully executed in the other version. All these details, added to the arguments based on the preceding points, led Mahon to conclude that it did not seem ‘plausible to support the idea that Mrs Johnson’s painting could be a copy of the painting belonging to the Pardo brothers’.
In appendix 1, Dr Roy, chief scientific adviser at the National Gallery in London, mentions the pentimento above Saint Joseph’s head and points out the presence of two preliminary undercoats of paint. This double layer (a dark brown superimposed on a traditional ochre) is identical to that found in The Annunciation, a painting by Poussin on show in the National Gallery, which was painted at the same period (1657). He concludes that ‘the elements revealed (and especially the one near to Saint Joseph’s head) were consistent with the fact that the painting is an original creation and, taken together, do not easily lend themselves to the hypothesis that this is the work of a copyist’. Jill Dunkerton, a restorer at the National Gallery, notes finally that the red speckling used to reinforce the depiction of the donkey can be seen in the same manner on the donkey in The Holy Family in Egypt.
Two years earlier, in May–June 1995, the Laboratoire de recherche des Musées de France had carried out analyses of the Pardo brothers’ painting (using X-ray, photography in direct light from the front and back, low-angled light, infrared and ultraviolet fluorescence, analyses using a scanning electron microscope). The results of these would not be made public until 2000, during the court case between the former owners of the painting and the gallery owners. The conclusions of the report co-signed by Élisabeth Ravaud, Alain R. Duval and Jean-Paul Rioux were just as cautious as the first analyses carried out on the other canvas by the Hamilton Kerr Institute. At that time, only Thuillier had published this version as an original Poussin and caution was of the essence. The authors of the report noted that the painting had been painted ‘using a seventeenth-century technique’, that there were some minor pentimenti indicating that ‘it could be an original work’, that ‘the colour and the composition of the preparation are very similar to certain paintings of the second half of the Roman empire’ and that ‘the pigments identified are the same as those used by Poussin towards the end of his career’. The hypothesis of an original painting meets with no contrary evidence, but ‘the information gathered in the course of this non-exhaustive study is not sufficient to provide total certainty on this point and cannot exclude the hypothesis of this being an old contemporary copy.’13
The commentary on these tests made seventeen years later by Jean-Pierre Cuzin, former curator at the Louvre, at a time when everyone in France was convinced that the right version was the one owned by the Pardo brothers and when the painting had been acquired by the Musée des Beaux-Arts de Lyon, turned the cautious results of the analysis made at the time into undeniable proof of the obvious authenticity of the work:
At that time [1995] there were all sorts of photos, x-rays, infra-reds, this and that (laughs)! Well anyway, everything to PROVE to those who did not believe that the Pardo painting could be an original. … Because there were some pentimenti, little things where a finger is moved, some foliage which is a bit so-so (laughs), which proved it was the original. Personally, I don’t really believe in that kind of evidence, I prefer something more qualitative to those kinds of proof, because it might be that someone will still want to see some paperwork … But in that case, there was also, for an unbeliever or the court room, plenty to prove that the Pardo painting was original. BUT I remember, at that time, I wasn’t authorized, professionally, insofar as the documents were made FOR museums, or rather for the State, to communicate any of that to the owners, that is to the Pardo brothers. The results of the laboratory examination were reserved either for works belonging to museums, or for works museums wanted to examine with a view to acquisition or for some purpose or other. But we are not allowed to refer to them or show the documents to the owners. They are purely for decision-making purposes.14
So it was on 24 March 2000 that the art world learned the results of these analyses, in the context of another expert’s report written by J.-P. Dumont and Jean-Louis Clément at the request of the court. The Court of Appeal in Paris in fact insisted, by a law dated 27 February 1998, that an appraisal of the painting be carried out. It requested in particular that ‘scientific research and studies of the painting be carried out, focusing especially on the canvas, the preparation of the painting, the materials, pictorial pigments, paint layers and the technique used’ and that there should then be ‘comparisons between the contentious picture and other works by Nicolas Poussin and with the results mentioned above’.
In both cases, it was a matter of comparing the physical properties and the stylistic properties of the painting with the physical and stylistic properties of paintings recognized as works painted by Poussin. This comparison was done with a view to linking the painting with an already established series, namely ‘the paintings of Nicolas Poussin’. And, to be even more precise, the painting in question was compared to one section of paintings by Poussin, those which had been painted during the last stage of his life: ‘The contentious work is situated in this decade. It is the end of the career of our painter, called: “the sixth period”.’15 The two experts were referring to the results of the analysis by the Laboratoire de recherche des Musées de France. The laboratory had undertaken an exploration of the surface of the picture thanks to various different forms of light (direct natural light, tangential lighting, ultraviolet fluorescence, infrared reflectography, radiography) and a chemical analysis of the pictorial pigments (micro samples of the painting studied with a scanning electron microscope).
The physicochemical study of the painting seeks, on the one hand, thanks to the ‘study of the pictorial surface’ under different lightings (natural light, tangential, infrared, etc.), to ‘“uncover” any repainting, any pentimenti, hidden by the visible layer’ and sometimes even to ‘reveal an entire previous painting’. On the other hand, the ‘chemical analysis of the pictorial layer’ enables scientists ‘through comparison with the theoretical mineral components, to identify the nature of the pigment forming the colour and to check whether it conforms to the materials available to the painter at the assumed, or known, period when the work was created’.
However, the problem with this comparative work is that the goal is not to link the painting to a broad class (for example, ‘paintings of the seventeenth century’), but instead to link it to a very particular class, that is to say to a proper name (‘the paintings of Nicolas Poussin’). Thus, if the analysis of the pigments or of the underlying layers of paint or the processes involved in dating the work allow works of another period or another artistic milieu to be eliminated, they never allow a painting to be linked to a person with any degree of certainty. For example, in the context of this assessment, the experts noted that ‘the background preparation of brown-red earth as well as the superficial grey-pink layer of white lead mixed with this earth are in line with the results of examinations carried out by the Louvre laboratory on the background preparation of Poussin’s paintings (see Techné no. 1; 1994)’. But, if that does not exclude the possibility that the painting is a work by Poussin, it does not lead to any certainty that this is the case, since Poussin had habits which were simply those of his time: ‘These pigments are therefore perfectly compatible with the palette used by Nicolas POUSSIN (see Techné no. 1; 1994): there is therefore no incompatibility. But these colours are not specific to him; the other painters of the period used them too.’
The study of the surface of a painting also shows up any pentimenti which often support the hypothesis of an original painting. The ‘Piasecka-Johnson’ version had some of these too, which could have sown some confusion on this point, but the fact was not mentioned in the report which is entirely geared towards the thesis of an authentic version.
This uncertainty therefore leaves room for the eye, or in other words, for the competence of someone who is in a position to recognize, in the grand tradition of connoisseurship, the hand of the painter. The physicochemical research laboratory is not able to show if the painting is by the hand of a particular artist. Only long experience of looking at the works of artists of the period enables someone to recognize the particular, unique hand of one of them. The problem lies in the fact that experts of the same level of recognition do not always reach the same conclusions. The same expert can, moreover, at different moments, change their mind over the origin of a painting. The Court report therefore points out that Rosenberg had initially doubted the authenticity of the painting: ‘Messrs Richard and Robert Pardo had seen Mr Rosenberg in the exhibition room, leaning over the canvas and examining it attentively. After his examination he had stated, “As far as I am concerned, this is not a Poussin”.’
Experts make links from the point of view of texture and pigments (‘Good light, or low-angled light can show up a real though subtle surface vibration of the surface which may be seen due to the brushwork, to the different rough textures of the material (intentional) or to pigments which have sometimes been unevenly ground [this is quite remarkable; the “random” dispersion of light-coloured pigments, usually yellow for areas of vegetation, or very dark in the sky]. This is found in many of Poussin’s works’). Links are also made from the point of view of form (‘Certain shapes recur, like this elliptical drawing in the shape of an eye which can clearly be seen on the left of the small edifice [this is also found in other works by Poussin such as ‘The Holy Family in Egypt’, Hermitage Museum], it is visible to the naked eye, in good conditions and accentuated by X-ray or in oblique light’) and also in terms of colours (‘There is a noticeable dominance of Verdigris, an essential component in Poussin’s palette. In any case, there is no contradiction in relation to Poussin’s work as far as the colours of the contentious painting are concerned, but rather some eloquent similarities, the silver grey tones so often found in Poussin, the mauve tones in the rocks which also occur in the Allegory of Autumn [with the same highlights!]’).
Nor do the experts hesitate to confirm that certain stylistic traits of the painting are veritable ‘signatures’: ‘In order to model, shape each part of his subject, his touch is at times hesitant, at times tentative, streaked, curling, tapering out, sketchy, in a word, enormously diversified, it is a veritable script, better than a signature!’; ‘The long powerful wavy brush stroke in the sky stands out like a signature’.
Although experts are supposed to provide answers to the question: ‘Is this painting by Nicolas Poussin?’, they sometimes drift into replying to another question: ‘Is this painting beautiful or moving?’ But this shift only happens because experts implicitly link the two questions: the ultimate proof that Poussin is indeed the author of the painting would lie in the beauty of the work and in the emotion it is judged to provoke in the person looking at it. The experts seem then to be stating that such a beautiful and moving painting can only be an old master. They refuse, on principle, to admit that it is possible to find a work by an unknown or less important painter beautiful or moving.
For example, in a section entitled ‘Description of the litigious work’, the authors begin by describing in a largely objective manner the elements depicted: ‘Against a background of semi-mountainous landscape, framed by a classical building with two columns to the left and some fragments of monumental architecture on the right, the Angel dominates the scene and Saint Joseph hastens on his way with the donkey, followed by the Virgin, carrying the Child in her arms, her head turned to look back. Barely visible, a young man reclining on a slope, leaning on his left elbow, completes the narrative.’ But they then continue with some very subjective aesthetic judgements: ‘The subject is depicted in a clear and distinct manner, with simplicity, concision and restraint, well-centred, well-balanced, powerfully eloquent and with considerable emotion. The figures stand out against a background shaded with halftones; the work is executed soberly, without either anecdotal or decorative anecdote and in a style devoid of any attempt at seduction through illusion or virtuosity. At first sight, the work is impressive.16
Other extracts from the report simply vaunt the aesthetic qualities of the painting as though seeking to use this as further proof of its authenticity:
As to the way the leaves are rendered, this is remarkable; the painter makes use of all the depths, he shapes them, varying the matter or the shape. Each leaf practically has its own character, its elegance, its truth!
The four main faces are like fragments of an anthology, the very beautiful and subtle one of the Virgin, with its almost indefinable expression of anxiety, the Angel with the handsome profile of an ancient medallion, softly fashioned and full of charm. As to Joseph, his sensitive and emotive face, is almost resonant of the craftsmanship of Veronese.
[We] sense a structure clearly understood from within and painted with love.
At the end of 2007, a second assessment, complementary to the first one, was carried out by the Laboratoire de recherche des Musées de France and completed in January 2008. It was carried out by the C2RMF, at the request of Isabelle Dubois, curator of the Musée des Beaux-Arts de Lyon. The report was drawn up by Élisabeth Ravaud and the tests carried out consisted of a series of multispectral photographs (direct light, infrared radiation, ultraviolet fluorescence), an X-ray, and an examination under microscope using micro fluorescence X. The painting had by that stage been acquired by the museum after a long race against the clock, and it was no longer a matter of analysing it in order to establish its authenticity, but to put together the scientific file which attested an originality no longer questioned in France. The painting was linked to the series of Poussin paintings, and the results of the new analysis were compared with those of other paintings by artists already studied: ‘Thanks to an important bank of scientific documents on the works of Poussin, already assessed at the Research Laboratory of the Museums of France, the results obtained could be seen in perspective.’17 The comparison was possible because of an accumulation of data on Poussin’s paintings which was available for reference purposes.
Not surprisingly, the conclusion of these analyses was much less cautious than the preceding one because, coming as it did after the appraisal ordered by the courts, after numerous French art historians had made their opinion clear and after the public acquisition of the work, the laboratory analysts were now authorized to think that the painting was by Poussin. The opening phrase of the conclusion is rather imperious, given this perspective: ‘This painting by Poussin dating from 1657–1658 according to archive documents does indeed feature methods characteristic of the period of activity towards the latter part of the artist’s life.’18 In 1995 the painting had only just been published by Thuillier, whereas in 2007 it was the object of a fairly general consensus within the French art world. In 1995 there were questions over possible connections between certain aspects of the painting and Poussin’s illness (‘Is this the result of the illness which caused Poussin’s hand to tremble?’), whereas in 2007 these characteristics are mentioned as proof that the painting is indeed by the artist (‘The intensity of the tremor, as it impacts on the workmanship and the creation of certain parts of the painting, suggests moreover that Poussin’s illness was largely progressive and not a new condition. […] This characteristic, relating to a medical condition, also represents a proof of authenticity’19).
In comparison with the caution of 1995, the assured tone of the commentary shows the extent to which scientific results are subordinate to the judgements of the highest authorities in the art world. The painting had recently been acquired for a sum of €17 million and the only purpose of such analysis was to enrich the catalogue of the exhibition centred on the painting. It went without saying, therefore, that the painting was an autograph work, and the reader was simply being offered a scientific presentation of this autograph work.
Finally, in February 2008, at the request of the Musée des Beaux-Arts de Lyon, the ‘MBA de Lyon’ and the ‘Piasecka-Johnson’ versions were photographed using the multispectral camera of Lumière Technology (a private laboratory founded in 1989).20 The subsequent report was written by Pascale Cotte (director of research at Lumière technology, inventor of the multispectral camera).21 The report reveals a difference between the two versions in terms of the pentimenti (the columns, edges of the building, positioning of the vase, cornice, angel’s wing all seem to have been modified in the Lyon version). Certain pigments in the ‘Piasecka-Johnson’ version could be later than the seventeenth century (they are at any rate not present in the Lumière Technology database).
Nevertheless, the highly promotional tone used throughout the report22 throws some doubts on the objectivity of the approach. The goal is ultimately to say that this method of analysis, presented as ‘revolutionary’, could have avoided controversies: ‘It will no doubt be noted that had this technique existed earlier many uncertainties and ambiguities would have been avoided.’ But, totally focused on demonstrating that the painting is indeed by Poussin, the report does not, for example, refer to any pentimenti in the ‘Piasecka-Johnson’ version, whereas the British analyses had pointed these out.
A painting could, from a strictly commercial point of view, be considered simply as an object amongst others, in the sense that it can be bought and sold. However, a number of particularities distinguish it from ordinary objects. First of all, given that it is generally sold in public salerooms, it is obtained through an auction system which contributes to inflating a price already difficult to fix, and which can be completely unrelated to the amount of work that the artist has put into producing it. Then, while a painting is indeed an object which can be bought and sold, this object is removed from normal commercial circulation as soon as it enters the collections of a public museum. Finally, and this is the most delicate and mysterious element, more often than not, neither the seller nor the buyer are 100% sure of the exact nature of the painting which is the object of the commercial exchange, or in other words, of its ‘substance’.
This last fact is the most extraordinary. What exactly is being sold? A canvas, certainly. Everybody can touch it, appreciate it, see it, even examine it and, except in fraudulent cases where the object would be replaced by another between the moment of its sale and the moment of it being handed over to the buyer, it is indeed the object seen by the buyer that he or she acquires. But what the buyer is acquiring is something altogether different from this clearly visible material object. They are acquiring a status, a label: an ‘autograph painting by Nicolas Poussin’, a ‘contemporary copy of a painting by Nicolas Poussin’ or a ‘late copy of a painting by Nicolas Poussin’. In these various cases, aesthetic and economic values vary considerably. The double, twinned nature of the painting is therefore what singles it out.
The problem lies therefore in the fact that those who are in a position to legitimately describe works, or in other words, to say what they really are, are the experts and that these experts are not necessarily in agreement, and that it often takes many years of controversies, of historical research, of laboratory analysis and direct comparisons, where several canvases could claim the status of an autograph painting, before the status of the painting, its reality, can be established, at least for a time – given that art history is full of about-turns when it comes to the attribution of works. In other words, when a painting is sold at auction, there is little likelihood that the expert involved in the sale, working alongside the auctioneer, will hold the necessary cards to be able to affirm with any degree of certainty that the painting in question is of such and such a nature. He, or she, relies on existing published opinions, can call on a handful of external major experts to seek their advice (which they may not always give), but rarely has the time, the knowledge or the financial means to request scientific analyses, which in themselves can only definitively rule out obvious cases of late copies or forgeries.
All of this would not entail any serious consequences if the buyer and the seller simply had to accept without comment the disappointments or the pleasant surprises associated with any fluctuations in the painting’s status, in just the same way that someone involved in a real estate transaction can see the property gain or lose value without being able to reproach the agents concerned a few years later. An individual convinced they were buying a copy would then have the joy of discovering that they had in fact acquired an autograph painting or, on the contrary, the disappointment of finding themselves the owner of a simple copy or a forgery several years after acquiring a painting purporting to be an original. And the same would apply to the vendor who might have sold what they thought to be a copy at a derisory price only to learn that it was in fact an old master or, conversely, be delighted to have obtained a good price for a painting considered to be an original but which in the end turned out to be merely a ‘crude copy’.
The law in fact protects both sellers and buyers who can demand the annulment of a sale if they esteem they have been wronged. On the buyer’s side, this is a classic case: an individual who believes they have acquired a Rolls-Royce can demand an annulment of the sale if they discover that the engine of the car is that of a more ordinary vehicle. But in the case of works of art, as in that of objects with ‘historic’ value or which are associated with a famous person, the vendor can also argue on the grounds that he did not know the true nature of the object being sold. In such cases, the sellers can take action against the auctioneer and his expert, in that it was they who made the decision to sell the work with a status which subsequently turned out to be inaccurate. The annulment of the sale of a work of art for ‘erreur sur la substance’,23 as French law puts it, gives rise to discussions and commentaries of a quasi-metaphysical tone on the nature of this ‘substance’ and on how to judge whether or not an error has been committed. For what is the ‘substance’ of a work of art? How is this determined and by whom? In such cases the law is, by its own logic,24 dealing with objects which are ruled by their own artistic logics and which sometimes resist legal argument and categorizations formulated in connection with ordinary and much less problematic objects.
This is the kind of scenario which awaited the painting sold in Versailles in 1986, acquired by Parisian gallery owners, Richard and Robert Pardo, and restored to its original owner in 2003, before being acquired by the Musée des Beaux-Arts de Lyon in 2007. It is a story which is particularly revealing of the role played by French law in the workings of the art market and, in particular, in the lives of gallery owners and collectors, of the difficulties it encounters when dealing with cases of objects as particular as works of art and of its sometimes surprising claims to reveal the truth about objects which are of very uncertain status and are sometimes at the heart of controversies between the world’s greatest experts. Legal claims perhaps, but which could appear unfounded in the eyes of certain actors from the art world, for if ‘the judgement of a court, which decides conflicts or negotiations concerning persons or things by publicly proclaiming the truth about them, belongs in the final analysis to the class of acts of naming or of instituting [and] represents the quintessential form of authorized, public, official speech which is spoken in the name of and to everyone’, and that ‘they have the power to make themselves universally recognized. They thus succeed in creating a situation in which no one can refuse or ignore the point of view, the vision, which they impose’,25 we may well wonder how a judge, even when supported by experts appointed by the law, can be expected to pronounce on cases of authenticity when the most knowledgeable art historians cannot even manage to agree amongst themselves.
Moreover, this story, and in particular the unfolding of the trial associated with this version of The Flight into Egypt, along with the behaviour of some of the actors involved, would remain incomprehensible without the existence of a similar case previously heard in court (the ‘Saint-Arroman case’) and which was resolved in 1987, only one year after the Pardo brothers bought the painting. We shall see in this way how recent history can have an extremely determinant role in how present actions and decisions play out.
All of these issues will be examined in more detail in this chapter. But, before going deeper into matters of law, it should be noted that we are dealing, in the case of controversial works of art, with situations of relative uncertainty, which, however, only appear against a background of undiscussed certainties and beliefs. Some might want to emphasize here the fact that the actors involved in controversies are experiencing situations of uncertainty as to the nature of ‘what is’. Recourse to the laboratories or the courts are indeed a way of reducing uncertainty or of settling an uncertain situation. Yet the uncertainty, in such cases, is not to do with the structures of the social world (and in particular with the institutions and their classifications), but is in relation to the nature of certain beings (objects, in this case), that is to say to the place they should have in the world. It is essentially the status of singular beings existing in this world which can be relatively uncertain. The world itself, and the places available within it are, on the other hand, much more rarely questioned. Actors from the art world who turn to the law or to science are certainly not questioning the notions of art, the work of art, originality or authenticity; nor are they challenging the outcomes of struggles concerning the hierarchy of works and of artists, which mean that a Simon Vouet or a Louis Cretey are worth less than a Nicolas Poussin or that certain artists can be considered as ‘geniuses’ and some of their works as ‘masterpieces’; nor do they cast doubts on the law or science which are mobilized to say ‘what is […] about what is’ (Pierre Bourdieu).
People want to know, therefore, if a picture is an original or simply a copy (or indeed a forgery intended to deceive us), but they do not wonder if the distinction between original/copy/forgery is pertinent, or if art deserves the amount of attention it receives or if it is legitimate to separate objects regarded as sacred from those judged to be profane. We rarely wonder about whether it is normal to devote so much energy and money into acquiring ‘masterpieces’, into ascertaining their true nature, ensuring they are conserved and restored, insuring them against theft, etc. Uncertainty can indeed be focused on singular individuals (on their status and their place within a system of classification), but certainties often remain deep-seated as regards the inequality of the places to be occupied.
When, in 1986, the Pardo brothers acquired a canvas sold as a contemporary copy of a work by Poussin in the hope they had got hold of an autograph work, they had little idea of the formidable trap into which they had fallen. Eight long years were to go by during which they sought every possible means to get their painting published. And when in 1994, the situation seemed finally to have been resolved for the painting, and by the same token, for them, the original owners reappeared on the scene and demanded that the law should annul the sale on the grounds of ‘erreur sur la substance’. What, then, is this ‘error’ which can be invoked by sellers even though they have lived alongside the painting in question for many years? And what is this ‘substance’ that is referred to?
Is this car that has been sold to me as a Rolls-Royce really a Rolls-Royce? Is the perfume I am sold as a Chanel perfume really a Chanel perfume? Requested by the law in cases of conflict between buyers and sellers, scientific analysis which would examine the components of the car or which would study the chemical properties of the perfume in question, basically corresponds with an economic ‘need’ to determine the real ‘substance’ of things and, therefore, the ‘value’ attached to them. It is because in human exchanges, any objects which change hands have a value – economic, aesthetic, political, moral, etc. – that the necessity to determine the exact nature of this substance becomes important. Science, which confirms a certain number of substantial properties, and the law, which officially records this reality and has the final say in disagreements, are the main ways of establishing what is real.
If science challenges the supposed substance of a thing – whatever it was that made the buyer buy it, but also what made the seller sell it – then the law can decide to annul the contract which has been agreed. The ‘erreur sur la substance’ reveals that the exchange contains a flaw. Article 1110 of the civil code therefore states, in its first paragraph, that ‘error is a ground for annulment only when it rests on the very substance of the thing which is the object thereof’. The very possibility of an annulment of the sale rests on the idea that the contractors should know the true nature of what they are exchanging.
With reference to the theory of erreur sur la substance, to the different possible interpretations of it and to all the discussions on the subject in the courts which lead to decisions concerning the legitimate ownership of works and the annulment of sales, we could use the same words as the law historian Frederic William Maitland used on the subject of the theory of the two bodies of the king and on the numerous commentaries which ensued from that notion, namely that it is a ‘marvellous display of metaphysical […] nonsense’.26 But we would then be failing to understand that it in fact endeavours, albeit with difficulty, to settle the question of the reality of objects within the world, a reality which becomes important whenever any exchange between individuals takes place. In order for any such exchange to be equitable, all the parties involved must agree on the nature of the substantial qualities of whatever is being bought or sold.
However, when it comes to works of art, it is clear that this notion of substance does not have the same meaning. While it may be relatively easy to verify that a solid gold object sold as such is in fact only a piece of gold-plated bronze or that a perfume is not, chemically, the one it claims to be,27 when the status of the object is uncertain, as is the case with works of art where the precise, particular origin is difficult to establish with any absolute certainty, and where even leading experts have trouble establishing their ‘reality’, it is easy to see that ‘substance’ does not exist ‘of itself’, as an intrinsic property which can be physically or chemically attested but instead depends on the judgement of those who are authorized to give a verdict on the subject. Their role is the delicate operation of linking the object with a particular name and not with a broader group. The question of substance therefore goes back, in the final analysis, to that of ‘being able to tell the truth about substance’. The same would, moreover, apply to the sale of holy water, where the chemical substance is no different from ordinary water, as many medieval theologians have observed, and which would imply, on the other hand, that the link associating it to a ritual carried out in due form, in the right circumstances, by the right people would need to be demonstrated.28
It is precisely because the ‘substance’ of an object escapes notice or remains unknown to both the parties to an exchange that the ‘erreur sur la substance’ can be cited with equal validity by either the seller or the buyer. It is because we imagine, based on the sale of ordinary objects, that the seller has a clear understanding of the nature of what is being put on sale and that we tend to more readily see the dangers lying in wait for buyers when their only information about the goods is the description provided by the sellers and a more superficial understanding, that the idea of protecting the seller just as much as the buyer is a surprising one. Moreover, before 1930, French case law tended to reject the notion that the seller could cite erreur sur la substance. But, in 1930, the Final Court of Appeal (Cour de Cassation) approved the principle of an error of the part of the seller on the item offered for sale, the law making no formal distinction between the seller and the buyer. By accepting this possibility, the law in fact protected the profane from all possible attempts of extortion by experts. For the sale of an art object does not in the abstract involve just a seller and a buyer but it also brings into play intermediaries and in particular, the auctioneer and experts whose job is to determine the exact nature of what is being sold. Given that they too, when making their decisions, rely on the current state of scholarly knowledge in art history, it could even be said that between the seller and the buyer, there is a complex network of actors, living or dead, who are directly consulted or simply read (in the form of articles or catalogues raisonnés), from both France and abroad.
Certain specialists, however, object to this extension of the notion of erreur sur la substance to the seller.29 They argue that there is no real equivalence between the positions of buyer and seller in the context of the sale of a painting, for example. The person selling should not logically, according to them, be able to cite an erreur sur la substance since, as the owner of the painting, he or she has had time to form an opinion, and to know the reality of what is being sold. Should this prove not to be the case, the seller could be accused of a certain negligence. By citing erreur sur la substance, the seller is in a sense saying: ‘I don’t know what it is I have sold. I put up for sale a work which was not what I thought it was.’ This view of things implies, however, that knowledge of the true nature of the painting is within the reach of everyone, whereas in fact, not only is it a matter for specialists, but a controversial one at that, involving interests, rivalries, power struggles between experts, art historians, etc. The ‘substance’ of the painting is therefore collectively determined and necessitates a long, and never totally resolved, process of expertise. As Duret-Robert recounts:
It sometimes happens that the annulment of the sale ends up rewarding ignorance and negligence and penalizing clear-sightedness and competence. Take, for example, the case of The Lock: this painting was presented in a public sale in Paris in 1969 […] as a painting from the school of Fragonard. The Parisian art dealer H… acquired it for 55,000 francs (plus charges). Once he had had the canvas cleaned, he managed to prove that it was in fact an original work by the master, which enabled him to sell it to the Louvre for 5,150,000 francs. The previous owner of the painting, S.-C…, then requested the annulment of the sale, claiming that he had committed an erreur sur la substance, since he had sold as a work from ‘the school of’ a painting which was in reality by the hand of the master. The Paris tribunal dismissed the case but the higher court of Paris responded favourably, annulling the sale. The problem was that H… was not in a position to return the painting, since he had duly handed it over to the Louvre. The judges therefore ordered a restitution in value, with H… needing to pay to S.C… the difference between the price he had sold it at (5,150,000 francs) and the price he had bought it for (55,000 francs). […] We can therefore take the view, along with Jean Châtelain that such judgments ‘are disastrous’; they end up giving a guarantee to the person who has managed his property poorly and who ends up, without having done anything to deserve it, with an officially authenticated object or a substantial compensation. Conversely, meanwhile, those who have worked, studied and finally discovered a significant piece hidden under a previously neglected object, find themselves deprived of any recompense, and may even find their good faith is questioned either explicitly or implicitly.30
The option for the seller to annul the sale, in cases where there is a change in the status of a painting, consequently puts collectors, gallery owners and art dealers in a delicate position. In fact, these people are constantly gambling on being able to discover (in the sense of obtaining recognition) unknown works, and by the same token, buy at a low price apparently anodyne canvases which turn out to be paintings by masters. Yet more often than not they can only manage to do this if the initial owners of the painting are not aware of the subsequent existence of the pictures they have sold and do not therefore demand the annulment of the sale. This requires any resale to be discreet (a difficult matter when the painting is the work of a major artist),31 or to take place abroad, or for the initial owners to have died, or else to be completely ignorant about the art world, with no possibility of them stumbling across information about the resale of their canvas at a considerably higher price, or for them to be ignorant of the laws governing the annulment of sales.
But, in order to avoid the problems and the disappointments that the Louvre experienced with the ‘Saint-Arroman case’ and the Pardo brothers encountered with the version of The Flight into Egypt bought in 1986, certain dealers now negotiate with sellers to ensure they do not demand any future annulment of the sale: ‘With verdicts like these, salerooms will simply not exist anymore’, explains Jean-Pierre Cuzin, former head of the department of paintings at the Louvre and a consultant for the Éric Turquin art expert agency.
But that’s why many dealers nowadays once they have bought a painting in a public sale, a painting whose author they have identified, or think they have identified, get in touch with the sellers, give them a certain sum of money, negotiate with them or reach an agreement that whatever happens there won’t be any come back. If you have a painting which is sold for €300 at Drouot and then the next day you read in a newspaper that the museum has bought it for €3 million … (laughs) well! The dealer’s life is about trying to spot paintings, either in public sales, or in the hands of individuals, and buying them as cheaply as possible – so it is not about robbing old ladies of course (laughs) – and then working on them, showing them to experts, getting them restored, all that stuff!32
Sometimes, owners are only too aware of the change of status of their painting, but simply lack the strength to embark on a long legal process, which can be very expensive. This is what the journalist Vincent Noce describes on the subject of a painting sold for 50,000 francs by antique dealer, Gérard Schorp, bought by the Louvre who then presented it as a work by the Bruges artist Lodewijk de Deyster:
Even today, the antiques dealer could, without a shadow of a doubt, obtain the restitution of his painting through the courts. He hesitated. He dreads the length of time the proceedings will take, the costs involved which could easily be as much as several tens of thousand euros. He has remained friends with the auctioneer involved in the sale, someone he used to advise regularly as an expert. In his view, Maitre Casini-Vitalis ‘did her job correctly’. Nevertheless, she is legally responsible for selling the painting at a loss, as is Éric Turquin. ‘As an antique dealer, and especially as an expert with the customs and the court of appeal, I felt I could not attack an institution as powerful as the Louvre. And also, what can you do, I’m not the litigious type’, he concludes.33
In the case of the original owner of the painting sold in 1986, everything went against the gallery owners. Not only was this a bourgeois family who decided to sell their painting at an auction sale, but were perfectly capable of finding out about the reappearance of their painting now attributed to Poussin, but they also had the economic means to approach a big name at the Bar (the lawyer William Bourdon) and never gave up on the case, even when it was dismissed in court. As Bourdon explains:
It could have been – this happens in other cases – that the client becomes disheartened at that point! That they decide not to appeal! At the time, the lawyers on the other side were very happy! So they held out on us. They said to us: ‘But you don’t understand! You are confusing this with the first Poussin case, you think that the way is wide open to you.’ Well, we hung on, because in this job, you need to be stubborn. But if at that time there had been any desire to reach some kind of arrangement, payment of expenses and fees, I don’t know what would have happened! I think my client and [his son] were TRULY determined to go all the way, because there was this conviction that it was a Poussin.34
The existence of these judicial cases therefore depends quite largely on the social position of the owners, on their knowledge of the art world, on their decision to take it to court and on their financial and moral capacities to endure a long lawsuit. The son of the owner (who held an important post in a large public company) confirmed the fact that he had invested a lot of time on the case throughout the duration of the proceedings, seeking out information his lawyer needed:
I probably spent thousands of hours on this case, doing research right, left and centre all over the world, and also preparing all the arguments for the trial, putting it together. That’s where I worked really well with William Bourdon, we made a great team. I gathered together all the material and prepared a strategy. And William Bourdon put it into shape. And when he presented me with his conclusions … Well, there were sometimes some pretty lively conversations! I spent, I’ve lost track of my hours, but maybe thousands of hours! And it’s exhausting stuff. Especially in a context where you are up against a whole establishment, the whole art world. You see it all over the newspapers. You have EVERYONE against you!35
F. Duret-Robert judges the jurisprudence in this area ‘ridiculous’. Quoting Jean Chatelain, ‘who has not only been a professor of Law, but who for ten years was Director of the Musées de France’, he thinks, like him that ‘these are disastrous judgements’ which ‘penalize those who demonstrate clear-sightedness and who take risks’. Since the Saint-Arroman case, things are done more discreetly, but the overlapping of the two cases meant that the Pardo brothers turned up at the worst possible moment. Case-law had just turned against dealers, but they did not yet realize what had happened and continued as though in the old system of jurisprudence:
They still very much continue to do deals! But they just don’t discuss them anymore! Their mistake was not to do the deals, but to talk about them. Now, all that is finished. Not very long ago a Jéricho was bought in a public sale, though it was not sold as one. It was a big dealer who bought it and naturally he kept it quiet. Deals happen at the Hôtel Drouot. I’ve heard about two or three deals at the Hôtel Drouot recently, and I can assure you no one mentions them. So, what do people do? Well, they put them away in their storeroom, and that’s the last that’s heard of them. They’re not going to have their sale annulled and nothing more is heard. They don’t lend them to anyone, and then a few years later, when they finally produce them, it will all have been completely forgotten. And the owners will have forgotten too. They re-sell them in the States and nobody will be any the wiser. Nowadays people are careful! Since the Saint-Arroman jurisprudence people have been careful not to show off their finds. You know, people still discover things quite frequently! But there was one quite recently! I think it was a Chardin that someone spotted. Well I can assure you that NOBODY mentioned it! A few people in the know … The Jéricho, I’m sure about because the sale took place in Rennes, and I saw the protagonists, the three antique dealers who had joined forces because they were the only three people to have seen that it was a Jéricho and they bought it like that. It was presented as ‘Nineteenth-century school’. But they were careful not to sell it or to exhibit it. Oh! You know, people aren’t stupid! When they are the victims of a stupid piece of case-law, they get around it very quickly.36
With this kind of case law, the supreme act of social magic represented by attribution becomes a highly problematic act which can only take place in certain cases. It may well be asked who nowadays would be interested in buying unattributed works and in ‘discovering’ them or allowing them to ‘be discovered’ as being by the hand of a master, given that the law would generally favour the original owner, judging them to be the injured party because they had sold, at a low price, a copy, a work said to be from the ‘studio’ or carried out ‘in the circle of’ a particular great painter and subsequently considered to be an autograph work. On the basis of the case law represented by the ‘Saint-Arroman case’, gallery owners ultimately have no interest in having a work considered as a ‘simple copy’ recognized as an autograph work. Doing so would automatically result in the painting being taken away. Case law renders any ‘find’ objectively pointless, except in cases where the dissymmetry between art dealers and owners is such that the former are able to profit from their find without the risk of the latter turning up to claim compensation.
Moreover, in legal debates on the notion of ‘substance’, and in particular in the opposition between the notions of objective and subjective, we find scientific debate which belongs to the social sciences: in order to establish whether there is ‘erreur sur la substance’, is it enough to simply describe objectively the substantial properties of the object exchanged and to compare it with the description of the object at the moment of the sale (an examination of the object proves that it is silver-plated bronze whereas it was sold as a solid silver piece) or should the question be to establish what ‘substance’ was involved in the exchange in the eyes of the buyer and the seller, what therefore was subjectively considered by them at the moment of sale as a substantial quality in the absence of which they would not have proceeded with the purchase or the sale (if the silver-plated bronze object was acquired essentially because it belonged to a famous person, the discovery that it was not in fact solid silver, but bronze, would not be considered a determining factor in the sale).
Case law in this area has retained the subjective conception of the erreur sur la substance since a ruling of 28 January 1913. That implies knowing what the determining quality of the object was to the contracting party. ‘Substantial quality’ is therefore confused with ‘determining quality in the eyes of the contracting parties’, with the judge needing to study the ‘psychology of the contracting party’ in order to assess if an error has indeed taken place. And if, at the moment of the sale, the seller introduced some doubt as to the exact nature of the object sold (for example the ‘painting by Nicolas Poussin or by an artist from his circle’), nobody could subsequently demand the sale be declared invalid because the law considers that, since doubt has entered the contractual field, the element of certainty overrides the error.
Why, one might well ask, go into the ins and outs of another case when it is that of The Flight into Egypt that is supposedly the focus? The logic of our research takes us almost by necessity towards this narrative ‘detour’. When the researcher defines his object by deciding to ‘tell the story of The Flight into Egypt by Nicolas Poussin’, he can, if he is not careful, become the victim of the limitations of his definition. Because in actual fact, the story in question does not appear as an isolated collection of facts and events, separated from many other preceding or parallel stories. Even if the decision were to focus on the case of The Flight into Egypt, there is no escaping the fact that this is, for the actors themselves, merely one case amongst others and, in this instance, merely a second Poussin case. Indeed, when it began, in June 1995, the judicial history of The Flight into Egypt was, in the minds of the actors at the time, ‘a new Poussin affair’. The way case law works reminds us that a current case always depends on previously judged cases. In this sense, the outcome of the case of The Flight into Egypt was largely predetermined and almost pre-written by the conclusions reached in the case of Olympos and Marsyas.
At the same time the painting of The Flight into Egypt was being sold at auction in Versailles (1986), a previous case was, in fact, just ending, fifteen years after it had begun, in favour of the initial owners who were requesting the annulment of the sale. At the time, the legal experts were referring to the ‘so-called Poussin case’ in connection with this story of the annulled sale of a painting initially attributed to the School of Carracci, and then pre-empted by the Louvre Museum before being published as Nicolas Poussin’s Olympos and Marsyas.
A painting consigned in 1968 to Me Maurice Rheims (auctioneer) was put up for sale at the Hôtel Drouot on 21 February 1968 as a Bacchanal from the School of Carracci, on the advice of Robert Lebel, expert, President of the Experts Federation. With a reserve price of 300 francs and sold for 2,200 francs to the Galerie Heim (Paris), it was, however, pre-empted by the Musées Nationaux (Louvre) on the initiative of Pierre Rosenberg, curator of the Louvre Museum.37 One year later, the same Pierre Rosenberg announced that the Louvre had acquired a painting by Poussin, Olympos and Marsyas. In an article published in the Revue du Louvre,38 Rosenberg observes that the painting is generally recognized as an autograph work by Poussin: ‘Let us say first of all that no discordant voice has been heard amongst the various scholars who have seen the painting since it arrived in the Louvre or who have been sent photographs of it, and that the attribution to Poussin himself is now, to our knowledge, unanimously accepted.39 The very name of the painting, constantly cited by the journalists of the time, was suggested by him, making him well and truly the ‘inventor’ of the painting, and results from an analysis of the work that some identified from the outset as an Apollo and Marsyas (this was the case for Thuillier, cited by Rosenberg): ‘It would appear therefore, that we need to be thinking of an entirely different subject: and it is the story of Olympos and Marsyas which comes to mind.’40
The former owners, M. and Mme Saint-Arroman, brought an action to have the sale annulled on the grounds of ‘erreur sur la substance’ and a second action concerning the responsibility of the auctioneer and the expert. The sale was annulled by the Paris Courts on 13 December 1972. The Paris Court of Appeal then quashed this verdict on 2 February 1976, on the grounds that ‘there is insufficient proof that the painting is by the hand of N. Poussin’.
In the report of the Paris appeal court hearing on 2 February 1976 quashing the decision to annul the sale pronounced in December 1972, the lawyer acting for M. and Mme Saint-Arroman presented the case by explaining: ‘they had believed they owned a POUSSIN, on the grounds of a purely oral family tradition, but that they had abided by the opinion of the auctioneer and his expert, and had been victims of an erreur sur la substance of the item sold’. Various counter-arguments were put forward by the lawyers representing the Réunion des Musées Nationaux. First, they claimed that ‘the error of the vendor over the attribution of a work of art cannot be estimated and sanctioned in the same way as that of the buyer’ and that ‘the mistake made both by the Saint-Arromans and by the auctioneer and the expert, their agents, by failing to thoroughly check the origin of the painting, meant the appellants had no right to plead their error’. They then added that ‘in this particular case it would be a matter of an error on the value and not on the substance, which would not entail the annulment of the sale’, that ‘M. and Mme SAINT-ARROMAN (had) always intended to sell their painting, whoever it was by’ and, finally, that ‘it is by no means established, either at the time of sale, or even today, that this painting was by POUSSIN, the opinion of the curators of the Louvre being subject to discussion’.
Amongst all these arguments, some turn out to be more fragile than others. Thus, the attempt to distinguish sellers from buyers with the implication that the sellers are supposed to have time to make sure they are fully informed about the exact nature of what it is they are selling is difficult to legitimize given the case law on the subject. On the other hand, the reintroduction of uncertainty and of controversy goes right to the heart of the question of error. If no one is sure of anything, on what basis is there any error? Paradoxically, the defence strategy attempted by the Réunion des Musées Nationaux to avoid returning the painting to the owners consisted in imputing the certainty expressed in 1969 by the young curator, Pierre Rosenberg, to imprudent haste and blind faith: ‘Monsieur ROSENBERG had claimed, with the blind faith sometimes displayed by eminent specialists who, through a process of autosuggestion, manage to convince themselves by abandoning any scientific prudence, “that the attribution to POUSSIN was now, to his knowledge, UNANIMOUSLY ACCEPTED”. Yet, it is indisputable and undisputed that all the POUSSIN specialists had not yet been consulted.’
The lawyers representing the Réunion des Musées Nationaux counterbalanced Rosenberg’s certainty by using the evidence of other specialists who considered that the painting was not in fact by Poussin. A letter from Doris Wild, a Swiss Poussin specialist, dated 1 April 1974 and addressed to M. Laclotte, at the time head curator of the department of paintings at the Louvre, was thus added to the ongoing legal file by the Réunion des Musées Nationaux, in order to put Rosenberg’s opinion in perspective. Contradictory opinions on the painting only surfaced during the course of the trial, since it was in the interests of the Réunion des Musées Nationaux to prove that there was no certainty as to the origin of the painting. But, if the painting had not been at the centre of a legal case, it goes without saying that nobody, on the part of the Louvre, would have mobilized the advice of an expert casting doubt on the authenticity of the painting. Wild wrote this, on the advice of Jacques Thuillier whom she met during a conference in Basel (‘M. Thuillier suggested I should write to you on this matter’): ‘In my opinion the painting is not by Poussin’s hand. I was already convinced of this when I first saw it and with each subsequent viewing, my opinion has been confirmed. […] You have only to look at how weakly the figures are modelled! The arrangement of the secondary figures is not clear, and the space is poorly defined. Poussin has a very different pictorial style.’
Duret-Robert clearly explains that, depending on the circumstances, it is in the interests of the actors of the art world to display unwavering certainty in terms of the nature of works of art, or on the contrary to introduce uncertainty. In order to amass the profits of someone who publishes a work for the first time or who exhibits it with the intention of selling it as an autograph work, the strategy is one of absolute certainty. On the other hand, the moment someone reproaches them, in the context of proceedings for an annulment of the sale, of having concealed the fact that they knew the painting was autograph at the time of the purchase or of pre-emption, actors reintroduce uncertainty:
So this painting turns up one day at the Hôtel Drouot in a Maurice Rheims sale, with Robert Lebel as the expert. And it is estimated at fifteen hundred francs. It is sold as a painting from the School of Carracci and goes for 2,200 francs. He is very happy given that he has made 50% more than the estimated price. And at that moment, the national Museums announce that they are exercising their right of pre-emption. Well! And then the following week, articles start to appear, notably in Le Monde, saying that the Louvre has bought a genuine Poussin, well! In fact, it was simply Rosenberg, who is very well informed about all that, who had seen it and said: ‘There’s a good chance that it is a Poussin.’ So, it is pre-empted for a sum of 2,200 francs and M. and Mme Saint-Arroman request the annulment of the sale. And, in order to defend themselves, because the Louvre didn’t want to see their picture taken away, they tried, if I dare say it, to devalue it. They brought in a certain Mrs Wild, whom no one had ever even heard of before … and who was introduced as the great Swiss Poussin specialist … who said: ‘Well no, these are not Poussin’s colours at all.’ Why? Because that cast doubt. And the problem which was being addressed by the courts was that in order for an error to have been made, the truth needs to be known. Error is defined in relation to truth. If we are not really SURE that this painting is an authentic Poussin, has any error been committed? If the Louvre had won their case, Mrs Wild would never have been heard of again and everyone would have said: ‘A certain Mrs Wild had said that … but in the end nobody believed it.’ Well there you are, they said it in court, they had her give evidence in court, and she ended up making a statement to the effect that she did not recognize it as a Poussin. It was all to show that there wasn’t unanimity, that’s all! The error is defined in relation to a situation where there can be CERTAINTY. If there is no certainty, can there have been an error?41
Also, in the same document, we can read that ‘the Réunion des Musées Nationaux and the State would now like to emphasize the uncertainty of the attribution of the litigious painting to Poussin, “exclusively based on the erudition and intuition (of curators), which are subject to variation and discussion”’. As well as Wild’s letter, the opinion of the auctioneer’s expert, Robert Lebel is also cited. Lebel ‘maintains that in his opinion the painting of the litigious canvas appears too opaque, too heavy and too typically Italian for it to be attributed to Poussin or even to his school’. Germain Bazin, former head curator of the department of paintings at the Louvre, writing in an article in the Gazette des Beaux-Arts, also dismisses the painting as a ‘poor affair, so spoiled and reworked, that it is really very difficult to tell if it is indeed an original’.
The report also mentions the reaction of the Saint-Arroman’s lawyer, citing Rosenberg’s very confident paper which claimed ‘no discordant voice has been heard amongst the various scholars who have seen the painting since it arrived in the Louvre or who have been sent photographs of it, and that the attribution to Poussin himself is now, to our knowledge, unanimously accepted’. The same report also mentions that, in his notes, Rosenberg cites, amongst his scholars, the highest authorities on the subject (Sir Anthony Blunt, Sir Denis Mahon, Charles Sterling, Michel Laclotte, Antoine Schnapper and Jacques Thuillier). It also indicates that a book by Thuillier (Tout l’œuvre peint de Poussin), published in 1974, describes the painting as an authentic Poussin. The strategy of reintroducing uncertainty about the nature of the painting is thus contradicted by these different elements. In spite of that, from these various exchanges, the Court of Appeal of Paris took account of the variability and fragility of the experts’ judgement and, as a result, quashed the decision to annul the sale, in favour of the Louvre.42
Following the verdict of 2 February 1976, a note from the Department of Financial Affairs and Regional Action addressed to the director of the office of the Minister of Cultural Affairs advocated discretion following the purchase of a painting:
In any event, it will always be desirable, as the ruling suggests, to remain discreet after any acquisition since the press and public opinion will always twist any scientific hypothesis into an absolute certainty, even when it is simply destined to be used in discussions amongst specialists: for museums, the value of a work will always remain incidental, relevant to acquisitions and insurances, whereas for the art market and public opinion, it is increasingly the central issue.
Rosenberg’s spirited and confident announcement of the arrival of a new Poussin in the Louvre is implicitly targeted in this note.
As proof of the complexity of the case and of the potential reversal of the arguments, on 22 February 1986, the Final Court of Appeal quashed the ruling of the Court of Appeal of Paris, arguing that the latter had committed the error of not establishing the situation at the time of the sale, and referring the case to the Court of Appeal of Amiens which four years later, on 1 February 1982, agreed with the first decision to annul the sale.
The report from the Court of Appeal of Amiens mentions an article in the newspaper Le Monde, dated 8 March 1968, under the headline ‘A rare find’, which attributes this find to the young team at the Louvre. It also mentions Rosenberg’s hurry to announce his ‘find’: ‘Note that M. Pierre Rosenberg, curator of the department of paintings at the Louvre, widely commended for his perceptiveness, could not wait to show the public the aforementioned pre-empted painting and to do so alongside other works of Nicolas Poussin under the title ‘OLYMPOS AND MARSYAS’. The same document from the Court of Appeal of Amiens condemned the strategy of the Réunion des Musées Nationaux in introducing doubt as to the authenticity of the painting: ‘Considering that the RÉUNION DES MUSÉES NATIONAUX is seeking to take advantage of the procedural battle it has artificially set in place in order to obtain a certain number of expert opinions and to attempt to throw some “doubt” on the authenticity of the litigious painting and to subsequently challenge the principle of the request, based on the idea that doubt excludes any error’; ‘it is the defendants who, at the same time, by multiplying objections on points of law, gained themselves some time to try and sow doubt in the minds of the judges as to the authenticity of the painting’. The argument about uncertainty (the ministry citing the ‘persistent differences of opinion’ amongst the specialists) about the authenticity of the painting is dismantled in the following terms: ‘Considering that such a comment cannot be legitimately upheld; that, not only could it be made about countless works nevertheless officially attributed to one artist or another, in all the great art museums, […] but, furthermore, such a comment should inevitably lead to the rejection of any request for annulment in the matter, on the basis of “doubt” built into the system, and according to the idea that, in the field in question, certainty does not exist.’
The same text coming from the Court of Appeal of Amiens points out a point of law, namely ‘that the consent of contracting parties and, as a result, the flaw likely to affect it, in particular the error on the substantial qualities of the object, should be acknowledged at the moment when intentions are exchanged; that it is without interest, for the outcome, to speculate about facts or events which might have occurred subsequent to the moment where the consent of the respective parties was established’. Now, it clearly appears that
the RÉUNION DES MUSÉES NATIONAUX were certain, on 21 February 1968, that they were acquiring an authentic painting by Nicolas Poussin; that in fact, the detailed examination to which the Experts of the LOUVRE had subjected the painting in the days preceding the date of the sale, the unusual immediacy with which the RÉUNION DES MUSÉES NATIONAUX exercised their right of pre-emption, the speed with which they confirmed their decision, then the ensuing Press campaign which immediately focused on the perspicacity of the team at the LOUVRE, the almost immediate and public showing of the painting, at the LOUVRE, in the ‘POUSSIN Room’, the long article by M. Pierre Rosenberg, all these facts confirm the idea that at the exact moment of the sale, the RÉUNION DES MUSÉES NATIONAUX were certain they were acquiring by pre-emption a work by Nicolas POUSSIN.
It follows therefore that ‘it is consequently established that the object of the sale was not the same in the minds of one and the other parties’, that ‘the possibility that the litigious painting was a work by Nicolas POUSSIN represents an “objective reality”’ and that it is ‘certain that the consent given by M. and Mme SAINT-ARROMAN, on the day of the sale, was vitiated by the error on the substantial qualities of the item, the object of the contract, since they believed they were selling a painting from the School of Carracci, whereas the RÉUNION DES MUSÉES NATIONAUX knew that it was pre-empting a painting by Nicolas POUSSIN’.
The judge of the Appeal Court of Amiens finally raised the weakness of the argument put forward by the Ministry of Culture, who claimed that the error committed related ‘to the value of the thing and not to its substantial qualities’, since it is obvious that it is impossible to dissociate the question of substance from that of value: ‘One can only, in this instance, refer to notions of “value” or of “price” except as consequences of the error on the substantial qualities of the item, subject of the contract.’
On 13 December 1983, a new appeal and a new adjournment before the Court of Appeal of Versailles: on 7 January, the Court of Appeal of Versailles definitively annulled the sale and, on 10 April 1987, the Louvre restored the painting to the owners. The legal process had lasted fifteen years. Monsieur et Madame Saint-Arroman sold the painting on 12 December 1988 at Drouot for 7.4 million francs (€1.4 million), approximately 3,360 times the initial price.
This precedent is evidently a determining factor in understanding the advantage accorded to the original owners of paintings published at any time after the sale as the works of great painters. The lawyer representing the family who owned The Flight into Egypt which was sold in Versailles in 1986, would rely implicitly on this case which had attracted a great deal of attention, thereby making his task much easier. It was as though all the arguments and counter-arguments exchanged during the ‘Saint-Arroman’ case had broadly paved the way for the legal decisions concerning The Flight into Egypt: ‘Me Bourdon relies on the “Saint-Arroman case law”, a case which caused quite a stir in its time and which will go down as one of the most painful moments in the memory of the Louvre, and incidentally of Drouot.’43
It is also important in order to understand the reason why Rosenberg, turning up in Versailles in 1986 to see the painting which would then be bought by the Pardo brothers, not only decided not to pre-empt the painting for the Musées de France, but remained extremely discreet in his judgement. When the auction took place in Versailles, the curator had already had his fingers burnt by the case of the painting Olympos and Marsyas, which would conclude a year later in favour of the owners. He was therefore not ready to throw himself into a new adventure as risky as the previous one.
The request for annulment in 1995, on the grounds of erreur sur la substance, of the sale which had taken place in Versailles in 1986, therefore came along against a particular background which was that of the Poussin case (Olympos and Marsyas)/Saint-Arroman which had ended a few years earlier, in 1987. The first Poussin case had lasted fifteen years and had given rise to four rulings and two appeals; the case concerning The Flight into Egypt would last seven years and would involve three rulings and two appeals. It is very clear that the first case largely determined the way the second one was handled. It was especially in the Court of Appeal that the influence of the Saint-Arroman case law made itself felt, and it was on the occasion of the appeals that this case was described as ‘simple’, ‘self-evident’ and a ‘textbook case’ in terms of case law. What we see, therefore, is a process where a case is regarded as ‘typical’. The final actors in this case, the judges and lawyers of the Final Court of Appeal, maintain notably that the simplicity of the facts and of their interpretation comes from the very nature of the facts themselves. If the trial went from new development to new development, this was not, according to them, due to the multiplicity of potential interpretations of the case, but to the strategies of the actors involved in the trial who sought to explore multiple legal avenues. The counsel for the prosecution, Me Mellottée, explained the situation: ‘Concerning the present case, if the procedure has been long and complex, owing to the interests involved and the different legal channels being used, the facts themselves are on the other hand particularly simple.’44
Following the texts published in 1994 by Thuillier – described, in the ruling pronounced on 30 October 1996 by the Paris Court, as an ‘indisputable authority when it comes to Master Poussin’ – in April 1995, the former owner therefore requested, through his lawyer, Me W. Bourdon, the annulment of the sale of the painting on the grounds of ‘erreur sur la substance’. She claimed that ‘she had made an error concerning the “substantial” quality of the item ceded which was a determining factor in the consent she had given to Me Olivier Perrin to sell it under the heading “studio of Poussin” which she would obviously not have given had she been aware of the reality’ (ruling handed down 30 October 1996 by the Paris Court). The lawyers for the SCP Perrin-Royère-Lajeunesse, for J. Kantor (expert) and for the Pardo brothers (gallery owners) claim on the contrary that the wording ‘studio of Nicolas Poussin’ at the time of the auction included an element of uncertainty about the authenticity of the work, accepted accordingly by its former owner.
But the former owner’s lawyer pointed out that not only had Anthony Blunt claimed at the time that the autograph painting was in fact a different canvas, but that ‘Pierre Rosenberg, head curator of the department of paintings at the Louvre, had travelled to Versailles before the sale on 2 March 1986 to examine the painting and had not seen fit either to “put in place any measures preventing it leaving the country”, nor “to exercise the national museums right to pre-emption, considering therefore that it could not be by Nicolas Poussin”’ (ruling handed down on 30 October 1986 by the Crown Court of Paris). Like the ‘eloquent’ silence of Thuillier referred to by the expert in his defence (‘Jacques Kantor claims to have carried out all possible documentary research in 1986, and “moreover consulted M. Thuillier who, after Blunt’s death was the only living authority, who had not gratified him with an answer, thus demonstrating the little interest he had in the painting in question”’) (ruling handed down on 30 October 1996 by the Crown Court of Paris), the lack of any action on Rosenberg’s part became a means of implying that the painting was not important. Similarly, the fact that the painting had not been exhibited during the major Poussin exhibition which had opened in September 1994 at the Grand Palais was used as an argument by Kantor’s lawyers in support of the idea that the authenticity of the painting was by no means certain.
In the course of the trial, the Parisian gallery owners, Richard and Robert Pardo also referred to the idea that they were the ‘inventors of the painting’ (they ‘claim that “if the authenticity of the paintings is recognized by some of the Nicolas Poussin specialists, it is the fruit of their labour”’) (ruling of 30 October 1996 by the Paris Court) and that ‘the recognition of the authenticity of the work results from their efforts and their battles’ (ruling of 27 February 1998 of the Court of Appeal of Paris on the ruling of 30 October 1996), in the sense that they had played a determining role in the discovery of an authentic Poussin (cleaning of the painting hidden under a thick varnish, exhibiting it to attract the attention of specialists, approaches made to specialists in order to get their verdict on the work, etc.). Unfortunately for them, they would be victims of a lack of legitimacy for although they had materially prepared for and made possible the discovery of the painting, they still did not have the power to truly discover the picture. That power was fought over by the great Poussin specialists (essentially Blunt, Mahon, Thuillier and Rosenberg). The ‘discovery’ of their painting, which was in fact no more than a public announcement, or more precisely a written statement, supporting the authenticity of the painting, was the work only of Thuillier, professor at the Collège de France.
The Paris Court, in its ruling of 30 October 1996, nonsuited the former owner of her two actions, on the annulment of the sale and on the responsibility of SCP Perrin-Royère-Lajeunesse and J. Kantor. As far as the annulment of the sale was concerned, the court ruled that the former owner did not define the error sufficiently, that is to say that she did not provide strong enough proof that she had sold with an erroneous conviction. Because of the lack of agreement between the experts concerning the authenticity of the painting, the SCP and the expert had a duty to be cautious in the description of the painting and were not able to report an attribution to Poussin; this justified the use of the phrase ‘from the studio of’ which, according to the court, included an element of uncertainty about the association of the work with an artist. As for the responsibility of the SCP and of Kantor, the court again esteemed that the former owner did not demonstrate sufficiently any fault on their part. Not only was there no consensus between the experts, but there was no evidence that additional scientific analyses would have been in any way conclusive. In such conditions, there was no evidence that the SCP or the expert should have taken any additional steps, or reached other conclusions in order to fulfil their mandate, and the judge concluded that they had indeed fulfilled their duty of care.
A first ruling of the Court of Appeal of Paris on the decision of 30 October 1996 was pronounced on 27 February 1998, concluding that the first condition for annulling the sale had been met, namely that the former owner had sold with the conviction that the painting was not by the hand of Poussin and there was no element of uncertainty in the description of the painting which she should have taken into account.45 This ruling was based on three elements: (1) the judge esteemed that the terms of the letter of 29 January 1986 from Me Perrin (for the SCP) to the owner excluded any possibility of the painting being attributed to Nicolas Poussin; (2) according to the legislation of 3 March 1981, the phrase ‘studio of’ means that the work was produced by pupils of the master or under his supervision, which therefore excludes him from taking part in its execution: the appropriate phrase indicating an element of uncertainty about the intervention of the painter is ‘attributed to’; (3) the sale price, considerably below the price which a Poussin would have fetched at that time, which the former owner did not modify once she was aware of the conclusions reached by J. Kantor and the SCP, proved that she sold in the conviction that the painting was not by Poussin.
The judges ordered an expert’s report from Professor Alain Mérot46 and from Jean-Louis Clément, expert with the Court of Appeal of Paris since 1995.47 Since Mérot, who had written his thesis under the supervision of Jacques Thuillier and was a friend of Pierre Rosenberg, declined to act as an expert, no doubt for reasons of too close proximity, another expert was named (J.-P. Dumont).48
The two experts in question, although legally authorized to practise, had no legitimacy whatsoever in the world of specialists in seventeenth-century painting. As Duret-Robert describes in no uncertain terms:
The judges only believe the expert they have named. Well! So, there are lists. There are experts, the list being drawn up by the Court of Appeal. A national list of course, approved by the Final Court of Appeal. That is to say that they are named by the office of the Final Court of Appeal. Which is all very nice, but you see, serious people don’t have time to be experts for the courts! They don’t want to be experts for the courts. You’ve never heard that Thuillier wanted to be an expert for the courts, or that Sir Denis Mahon… Of course, they’re nice people, hard-working and conscientious, but you take what you can get, eh! Curators CANNOT act as experts. A curator cannot act in the field of commerce or expertise unless they are named by a tribunal with the authorization of their hierarchy. If you turn up with a Poussin under your arm and someone says to you: ‘Well yes, but who said that….?’, ‘Er, well, it’s Dumont!’ ‘Really? And just who is this Dumont?’49
On 17 May 1999, Dumont and Clément sent a letter to Jean-Pierre Cuzin (in charge of the department of paintings at the Louvre) asking for the ‘technical file’ on the painting, put together by the research laboratory of the Louvre in 1995. After an exchange of letters, on 18 October 1999, the head of department of financial, legal and general affairs of the management of the Musées de France sent a letter to the director of the research laboratory of the Musées de France, asking him to pass on any available reports to the experts for the Appeal Court. The two experts therefore based themselves essentially on the results of this analysis, which had until then not been made public.
In their report delivered on 24 March 2000, Dumont and Clément turned out to be considerably less cautious than the authors of the analysis report carried out in the laboratory at the Louvre in June 1995. They stated that ‘the litigious painting cannot be a copy, owing to its masterful quality and an undeniable sense of being an original creation, confirmed by the inimitable graphic characteristics identical to those found in other recognized works by Poussin and emphasized by the scientific analyses’, that ‘the long powerful wavy brush stroke in the sky stands out like a signature’, and that, ‘likewise, this workmanship, which seems always so free, so spontaneous, true and so unerringly intelligent in no way resembles a copy!’. They declare too that ‘this is neither a studio work, nor a copy, nor a pastiche, nor the work of a forger’ and point out the ‘great nobility which emanates from the entire work’ as well as the ‘execution so complex and at the same time so uniform where the picture is written like a letter with different brush strokes inimitable in their personality (a signature which resolutely asserts itself!)’.50 The report concludes that Poussin is the author of the painting and estimates its value between 45 and 60 million francs. The experts speak of the ‘very good quality of the work which radiates, as a whole and in each detail, an undeniable poetry: it is a moment of pure emotion, a lesson in painting! The work can truly only be by the great Nicolas Poussin, in his finest period’.
On 28 June 2001, the Court of Appeal of Paris used the experts’ report as the basis on which to establish that the initial owner had indeed been the victim of an erreur sur la substance. It considered that this error had been a determinant factor in the decision to sell the painting in the conditions in which it was sold. The annulment of the sale was therefore pronounced in agreement with article 1110, with a request for the return of the painting by the Pardo brothers, the sum received in exchange by the former owner and the fees for the SCP and for Kantor.
The judges of the Court of Appeal considered, moreover, that the Pardo brothers had not provided sufficient proof of research or restoration work carried out by them and leading to the recognition of the authenticity of this painting. As a result, their suit was dismissed both in terms of their demand for compensation from the original owner, in the light of her ‘unjust enrichment’, and of their demand for recognition of their moral right as the ‘inventors of the painting’.51 The ruling of the Court of Appeal specifies:
that Messrs Richard and Robert Pardo cannot usefully claim that they ‘revealed the authenticity of the work’ and that it was thanks to their intervention that the litigious painting was recognized as being by Nicolas Poussin; that in fact, they did not provide proof of research or restoration work which would have led to this recognition; that they claim, without being able to justify it, that, by their actions, they convinced Professor Thuillier and Mr Rosenberg of the authenticity of the work and that they expressed, during the court hearings, an evolving opinion on the attribution of the work. In addition, they indicated, after having claimed that they had acquired the painting with the conviction that it was indeed a Poussin, that this attribution was uncertain; that the exhibition of the work, by their efforts, in 1989, cannot be considered sufficient to have ‘revealed’ it as being by the hand of the Master and that they were not able, in spite of their efforts, to sell ‘The Flight into Egypt’ as a work by Nicolas Poussin; that the authenticity of the litigious work had been established by the work of experts following the ruling of the court in session on 27 February 1998 by Mr Jean-Pierre Dumont and Mr Jean-Louis Clément, opposed by Messrs Richard and Robert Pardo.
Finally, on 17 September 2003, the Final Court of Appeal rejected the appeal of the Pardo brothers and confirmed the annulment of the sale. The work was restored to its former owner after a legal battle lasting eight years.
‘It is a case which exceeds any others [which I have had to deal with] in terms of its size, its complexity and, of course, of what is at stake!’ explains William Bourdon, the lawyer acting for the owner of the painting.52 The story of this trial, and its outcome, have had an impact on the art world, first of all in as much as that, behind the question of the annulment of the sale on the grounds of ‘erreur sur la substance’, lies the question of who is in a position to tell the truth about works of art. This famous ‘substance’ is the object of controversies between the greatest connoisseurs, museum curators and art historians, and by intervening in the process of the authentication of works of art, the law assumes a power which has no legitimacy whatsoever in terms of the chief players. This is very clearly expressed by K. Christiansen, President of the department of European paintings at the Metropolitan Museum of Art of New York, interviewed on the subject of this second Poussin case: ‘It’s a bit ridiculous to debate that in a courtroom, don’t you think? All that has nothing to do with the law. Those things can’t be decided by a judge. In such cases it should be a matter of sensibility and that’s where the true problem lies.’53
Moreover, by refusing to admit the role of the gallery owners in the recognition of the autograph painting and by annulling the sale, the law refuses to take note of the fundamentally social nature of the ‘substance’ of a painting. For, if the gallery owners had not done everything possible, with regard to the French experts, to have their painting recognized as an autograph work (by having it cleaned, exhibiting it, sending letters to the curators of the Louvre, inviting experts and personalities to come and see the canvas, etc.), it would have continued to exist in a Parisian gallery only as a simple copy of an autograph work published by Blunt in 1982. By rejecting the preparatory work for public recognition (article by Thuillier, then catalogue of the Poussin exhibition at the Grand Palais from September 1994 to January 1995) and by annulling the sale, the judges, moreover, make the role of ‘discoverer’ exercised by art dealers as well as by art historians and museum curators, a difficult one. Because, if ‘discoverers’ find themselves immediately stripped of their discovery, there is no longer any reason to lay claim to it or to draw attention to the result of their discoveries.
Vincent Pomarède, head of the department of paintings at the Louvre, sums up the difficulties that the law has introduced in the matter of the acquisition and attribution of works of art. He refers to the ‘professional interest of seeing how this case [the court case between the former owners of the work and the Pardo brothers] was going to end because in professional milieus, and more particularly amongst curators, there is a great deal of concern about these rulings which run counter to the professional integrity of both dealers and curators’. He explains the reasons behind his concern:
We spend all our time making attributions. Obviously, these attributions change the monetary value of the work, which is perfectly normal. But, if we cannot benefit from our knowledge in the context of an acquisition, especially if it is in the context of a public acquisition, then clearly there is a problem. That means that, effectively, it is no longer possible to do any kind of deals, in other words, to find an anonymous work and say to yourself: ‘Right, that is by such and such an artist’, then buy it and afterwards publish it or exhibit it under that artist’s name. There would be too much of a risk each time.54
But the family’s defence lawyer believes, on the contrary, that the law is in this way protecting all owners of paintings – often from the upper classes – who have to rely on the opinions of sometimes unscrupulous experts: ‘the action resulting in annulment of sale is precisely intended to put a BREAK on things, to cut down on rewarding cynicism and cunning in the face of ignorance and naivety. If not, it all leads to people getting EXTRAORDINARY undeserved riches or to scandalous impoverishments! It is a legal principle which seems fair, which re-adjusts the balance.’55
It is clear that, exceptions apart, such cases are essentially played out between the different sections of the dominant classes. They generally set bourgeois owners against art dealers and leading experts, responsible for controlling the artistic sacred, and themselves often from the same backgrounds and fully at home there. The great art historians or museum curators who weigh so heavily in this story moreover occupy positions which are rather rare in the hierarchy of cultural or academic powers, as we shall see later.56 The magic power of art objects first and foremost mobilizes the members of the dominant classes who seek to harness it, according to their individual interests. Each of them, in their own sphere and according to their specific interests, thus seeks to gain all the advantages, both symbolic and economic, which are associated with art objects.
The enchanted vision, which consists in seeing in these court cases which periodically rock the art world nothing more than a rather regrettable side show which fundamentally has nothing to do with art, fails to recognize the profound nature of what has historically constituted the artistic domain as distinct from the artisanal domains. In political usages of art (from municipal patriotism to nationalism), in the struggles associated with the material appropriation of works or with their attribution to famous painters, as well as in the phenomena of bewitchment associated with ‘masterpieces’, what is revealed is indeed the social nature of art as a power mobilizing the powerful. Beneath the erudite scientific controversies on the status of works and behind the sophisticated legal arguments over the ‘substance’ of works and the existence, or non-existence, of an ‘erreur sur la substance’, it is the struggles which come to light: struggles over the legitimate definition of the reality of things, and particularly over the definition of the object as sacred or profane; and then subsequently, struggles over the physical and symbolic appropriation of the sanctified objects.
In the history of the paintings I have recounted, one fact emerges as both omnipresent and almost invisible: the price of the paintings in question, highly dependent on the status attributed to them. Each time a work changes hands implies an agreement on a price, something which seems altogether banal in a society where commercialization has conquered almost all sectors of social life, from the most material to the most spiritual or symbolic. The price of a work of art nevertheless still has something mysterious and fascinating about it since it is rarely very low and the impressive heights it can attain are part of the social magic of art.
History has separated works of art from artisanal or industrial products. It has established hierarchies between art movements or schools of painting as well as between different painters, by casting some into oblivion and consecrating others. Amongst the painters marked out by history, and whose names generally feature in encyclopaedias of art history, certain painters have been raised to the status of ‘master’ or ‘genius’, whilst others have become honourable painters but without being in the very front rank. Finally, history has sometimes also hierarchized different periods in the careers of certain great painters, singling out the more unusual or the more flamboyant periods from all those which are considered secondary or minor. It is all this history that comes into play in an utterance as apparently simple as ‘The Flight into Egypt is the masterpiece of one of the great French painters; evidence of an artist of immortal genius, at the height of his talent’. By establishing these different kinds of classification and of hierarchy, what emerges, in the end, is the indissociably aesthetic and economic value or, more precisely, the belief in the indissociably aesthetic and economic value of a work of art.
In the case of ancient paintings, we are dealing with a market of ‘classical art’. This market of categorized, catalogued and referenced works is an extremely narrow market, dominated today by Christie’s and Sotheby’s, two British auction houses which have expanded into Europe and the United States. In France, these two tend to take precedence over the historic Hôtel Drouot, more powerful in the 1950s. Because of their considerable rarity, goods exchanged on this market are only accessible to a small number of actors, private collectors, but also and especially institutions (museums and art galleries) and art dealers. Only major museums and very rich individuals can access sufficient financial means to acquire the rarest and most sought-after works.
The value of an ancient work is linked to the aesthetic perception of the artist, to the place he or she occupies in the history of art and the place of this particular work in the whole body of the artist’s work. However, its state of conservation, the quality of cleaning and restoration it has been subject to, and sometimes even the relative fame of the hands it has passed through can all be factors in fixing its price. As far as ancient art is concerned, the main uncertainty is the authenticity of the work, with modifications in the hierarchy of aesthetic values certainly playing a role, though only a minor one when the artists and their works occupy a fairly stable place within the hierarchies.
It may well be asked, nevertheless, just how the price of €17 million was arrived at and how it could transpire that a canvas, initially put up for sale in Versailles for the sum of 80,000 francs (about €12,200) could see its price multiplied by almost 1,400 times in the space of twenty years. The most concrete answer to this question involves pointing out that the law obliges buyers, in the cases of a proposal to buy following classification as a ‘national treasure’, to align with the prices of the current international market. Seventeen million euros is, from this point of view, a ‘normal’ price in the context of other acquisitions of paintings by distinguished old masters, at the time of the negotiations between the Musée des Beaux-Arts de Lyon and the Louvre, on the one side, and the family who owned the painting, on the other. Thus, in the thick of the negotiations during the month of February 2007, the lawyer representing the owners cited the purchase price of a Rembrandt in order to establish a rough estimate: ‘Me Bourdon stresses that “the owners would be happy for the painting to be incorporated into French art collections. That depends on the capacity of French institutions to offer a price in line with an exceptional work”. He refused to give a minimum price but pointed out: “A Rembrandt of considerably inferior quality and in a much poorer state was sold for €20 million in New York last week.”’57 Following this, the Minister of Culture and Communication at the time, Renaud Donnedieu de Vabres, stepped in to calm matters down and threatened not to buy the painting if there was to be exaggeration; ‘I will not tolerate the attention this painting has received being used to increase the price. This is a message from the Minister to the Owner! If the price demanded is not acceptable, the work will no longer be protected. It is a magnificent painting, but France already owns sixty or so Poussins.’58 Each side has its experts and must suggest a price for the work in line with that of the international market, but, where no agreement can be reached, the law allows another expert to be nominated by the two sides or by a judge.
However, between what the law prescribes and the perception of the situation that ordinary actors may have, outsiders as they are to the art world and to the realities of its international market, the gap can be considerable. And it is a gap which can become significant when the potential buyers are intent on convincing the sponsors that the painting is indeed worth that price, when the municipal councillors are keen to convince the City that it can legitimately put a million euros into the purchase, or when citizens need to be reassured that the sums paid out are not disproportionate, especially at a time of economic crisis and budgetary restrictions.
Conscious of such difficulties, the director of the Musée des Beaux-Arts de Lyon and the head of development did their utmost to put the price of the painting into context for their partners in the negotiation, practising what could be called advantageous comparison. By leaning heavily, for example, on the prices currently under discussion at that very moment in relation to the signing of football players by Olympique Lyonnais, or by citing the even more exorbitant prices of more controversial contemporary works, they managed to make the €17 million seem more acceptable:
The example of the signing of a football player. … You wouldn’t believe all the ridiculous things you come out with at such times. It was also at a time when there were some massive sales of contemporary art by people like Damien Hirst, diamond G-strings, etc. So following on from that our 17 million, was practically nothing for a seventeenth-century work, by a known artist, etc. We felt reasonably comfortable with that price in the end. Yes, it is a huge amount. Yes. But there you are. It’s the market when all’s said and done.59
And when a journalist questioned Sylvie Ramond on the high cost of the painting, she perfectly reasonably cited the price that certain American museums were prepared to pay for the picture: ‘“Some American museums were ready to pay up to 25 million”, confided Sylvie Ramond, director of the Musée des Beaux-Arts. She would not have gone beyond 18 million.’60
Pomarède spontaneously uses the same strategy of contextualization to justify the price of the painting:
I think that people do realize that for an ancient work of art, when it is an exceptional one, it’s normal to pay a lot and in any case you’d be only paying 15% of the price of a modern picture or an impressionist painting. When you compare the prices fetched by Monets, Picassos, Van Goghs or the major contemporary artists, an ancient work of art is 10% of those prices. You’re soon in the 80 million, 100 million for modern art and contemporary works. For us, when we get to 15–20 million, that’s the maximum. There are a few artists who attract higher prices, like Rubens or Velasquez or artists like that, but apart from that, we are still a very long way from the price of certain paintings from other periods.61
The difficult acquisition of the Poussin by the Musée des Beaux-Arts de Lyon in 2007 is by no means an isolated case. During the same period, the National Gallery in London were confronted with a similar problem. Works which until then had been on loan from private collections were in danger of being withdrawn and put up for sale. This was the case with Poussin’s Sacraments: ‘The ensemble was worth more than €150 million on the market and was in line to become the most expensive work to be sold up to now – the record is undoubtedly held by Jackson Pollock’s No 5, 1948, owned by David Geffen and bought for $140 million at a private sale in 2006.’62 In the same article, we learn that the National Gallery paid €33 million for Raphael’s Madonna of the Pinks, that The Massacre of the Innocents was acquired by Lord Thompson for €75 million in 2002 and that the National Gallery had made a bid of €83 million for Titian’s Portrait of a Young Man in 2006.
Even if the acquisition of The Flight into Egypt was rarely the subject of public criticism, it did, however, provoke some unfavourable comparisons in the local press or on the part of Henry Chabert (Union for a Popular Movement), a political opponent of the mayor (Socialist Party).63 During the sponsorship campaign, the former weighs up the arguments between living artists and cultural heritage, present and past:
But let’s turn our attention to this figure of €10–15 million. Imagine if the same amount of energy was put into the Lyonnais artistic salons to raise that sort of sum and to commission works from contemporary artists, some of which would be, if chosen carefully, the Poussin’s of tomorrow. Let’s say between 10,000 and 15,000 as the average cost of these purchases. The calculation is simple enough: it means around 1,000 works could therefore be acquired and exhibited in our buildings and public spaces! It means 1000 artists who would obtain a commission and be able to live off it for a while. These figures might need to be adjusted and depending on the nature of the commissions there might only be 500 lucky winners. Enough in any case to initiate a real policy which favours artists over institutions. At a time when employment is a priority and where France, Lyon need to give some support to the creative world, is it more useful to line the pockets of a rich collector because he has decided to sell his Poussin, or to give a chance to between 500 to 1000 artists? People might say to me that it’s never right to set the conservation of works of art against the creation of new ones. If it came to making a choice, without hesitation, I would choose life!64
During the same period, art critic and editor Alain Vollerin also draws a parallel between living Lyonnais artists and the Poussin painting, in order to condemn the municipality’s decision:
How, in these times of hardship where the country is struggling, can €15 million be put aside to buy a painting by Poussin? The necessity of getting it into the collection of the Musée des Beaux-Arts is certainly indisputable. It seems to us, however, that there is no urgency in these situations. How can the Lyonnais tax payer who sees his contributions constantly going up and his purchasing power diminishing, possibly accept this decision by Gérard Collomb and his municipal council, supported by Jean-Jacques Queyranne, President of the Regional Council of Rhône-Alpes? With a tenth of this sum, we could complete and consolidate the collection of paintings by Lyonnais artists. When the people of Lyon are told about this decision, they are appalled. A decision which doesn’t auger well for the management of the Musée des Beaux-Arts de Lyon.65
But the comparison can also be made on a broader scale which is more ‘social’ than ‘cultural’ if, instead of condemning the injustices directed at living artists, the square centimetre price of the painting is calculated and the reference point used is that of the wage-earners situated at the lower end of the scale:
€17 million: this is the staggering sum made available by the State, local authorities, and companies involved in the sponsorship scheme in partnership with the Musée des Beaux-Arts de Lyon, for the acquisition of a work by Nicolas Poussin, The Flight into Egypt. The painting is of modest size, 97 cm × 133 cm, giving a surface of 12,901 cm2, which amounts to a cost per cm2 of … €1,317. Shocking? A different calculation: taking account of the gross monthly Smic (minimum wage), established at €1,280.07, the purchase price of the painting corresponds to some … 1,106 years of Smic, or in other words, the lifetime’s work of … 27 people on minimum wage. Certainly according to the saying, ‘art has no price’, but still … And worth pondering Oscar Wilde’s aphorism ‘All art is immoral’!66
If the person on a minimum wage can feel small in front of a painting worth €17 million, it is precisely because he or she is aware of the gap between what they represent and what the object in question represents, in particular the gap between his or her actual possibility to act compared to the potential possibilities of action symbolized by the object.
In spite of the belief in the rationality of the economy, a price does not, in itself, have anything rational about it and the spectacular increase in price for the same painting, depending on whether it is considered a simple copy or an autograph painting, clearly reveals the social magic of art. What is being bought for such a high price is not so much a physical work as the belief, collectively shared, in the value of this work. Taking away that belief, or in one way or another dismantling the structure supporting this belief, means stripping the work of the charm and emotional power that is accorded to it. That is not to say that interest in the work, its charm or the emotion it provokes would be ‘artificial’ or ‘inauthentic’, but rather to demonstrate that interest, charm and emotion are indeed the products of social conditions.
The recent example of the British street artist Banksy who, in 2013, outside the gates of Central Park New York, sold anonymously for a few tens of dollars examples of his works, some of which could be worth several hundred thousands of euros on the contemporary art market (one of the artist’s works fetched the sum of €880,000 on the art market) gives a good indication of the significance of all the external conditions of legitimacy which constitute the value of works of art. By voluntarily breaking the institutional codes, the artist was putting into action an internal critique of the art world which is essentially very similar to the sociological analysis of the social conditions which produce the value, and, beyond that, the charm of the work.67 Taken out of the art gallery or the auction room, sold on the pavement by an old street seller ‘who is not much to look at’, works estimated at €23,000 on the art market but sold at a price of €44 barely sold at all (in a single day, the sales figures amounted to €309 … Only three people had bought paintings: a woman who had bought two small paintings for her children, but only after haggling over the price (50% of the price shown), a New Zealander who bought two and a man from Chicago who was decorating his new house and was looking for things to put on the walls (he took four of them).68
If the price of €17 million implies that the work in question is recognized by a significant proportion of experts as a painting by a great master, the narrow link between aesthetic value and economic value means that the relationship works in both ways: buying such an expensive painting is a way (of attempting69) to put a lasting end to a controversy and the resounding proof that some individuals are completely convinced that the work is autograph. The ‘false price’ represented by the sum of 1.6 million francs (the price for which the Pardo brothers acquired this painting put up for sale at only 80,000 francs) at the 1986 auction in Versailles was, moreover, already an indication of a gamble on the autograph nature of the painting.70
Not only are the prices of works of art by no means rational, in the sense that they are particularly disconnected both from the practical value of the works and from the amount of work which was put into their creation (this could even be zero in the case of a urinal or any other industrial object), but they also are an active component of the magic associated with art. Indeed, it is no coincidence that the vast majority of the press articles which came out on the subject of this version of The Flight into Egypt mention over and over again the same mesmerizing information on the subject of the ‘exceptional’ commitment of €17 million. In fact, there is nothing exceptional about this, as Judith Benhamou-Huet stresses, pointing out the fact that the major sales at Sotheby’s or at Christie’s attract far more media attention nowadays with the emphasis on the record sums involved:
It’s been like that, and it’s also because of that, that, since the 1980s, the works of Van Gogh, and today of Picasso, have turned up on the small screen in the context of news broadcasts throughout the entire world. It should be noted that it is the money involved in the sales of these paintings, and not the paintings themselves, which has made art into such a high-profile event. Creation itself, seen as too elitist, does not attract interest on a worldwide scale. Whereas the money from creation … […] Most of these articles are content to focus on the astronomical price of the work or its estimated value, the name of the artist and a few eulogistic comments which are then taken from press releases.71
Authenticating a painting means creating its aura for the spectators. But acquiring it for a sum which fascinates because of the power over things and people it represents, is also a way of participating in the social magic of art and of implicitly paying homage to the social powers which it reflects.