By Brian W. Harvey. New York: Oxford University Press. 1992. Pp. viii, 126. $35.
The lure of the violin has stiffed passion in the hearts and minds of musicians and collectors of the violin family, I many of whom have fallen victim to fraud and other misdeeds throughout history. The subject of such misdeeds, from a legal standpoint, is the focus of a provocative new book, Violin Fraud Deception, Forgery, Theft, and the Law, by Brian W. Harvey.(2) Harvey's book examines the microcosm of the violin world and incorporates a general overview of civil and criminal English law as applied to, among other things, violin theft and the intentional and negligent misattribution and description of violins.
This book review includes three Parts: a general discussion of the issues Harvey raises; an examination of the possible legal implications of secret commissions paid to violin teachers by violin dealers or makers, which Harvey touches on briefly; and an analysis of how the discovery of allegedly false "opinions" as to the authenticity or description of a violin may affect a consumer's remedies when discovery is not made within the applicable statute of limitations.
THE PLAYERS AND THE PRACTICES
Harvey sets the backdrop for his analysis by describing the gamut of players involved in the violin trade, including the "suppliers" on the one hand (violin dealers, violin makers, and auction houses) and those creating demand for instruments (musicians, students, and collectors) on the other. As Harvey observes, the violin involves both visual and musical aesthetics (p. 2), which together make it a unique hybrid of the worlds of art and music. Woven throughout Violin Fraud are entertaining historical anecdotes. For example, in 1685 in Italy, a man petitioned the Duke of Modena for assistance in a matter involving the false labeling of a violin:
Your most Serene Highness,
Tomasso Antonio Vitali, your most humble petitioner, now at the service
of Your Most Serene Highness, bought of Francesco Capilupi,
through the medium of the Rev. Ignazio Paltrinieri, a violin for the price
of twelve pistoles because this violin bore the label of Nicolo Amati, a
maker of great repute in his profession. Your petitioner has, however,
discovered that the said violin was falsely labelled, he having found underneath
the label one of Francesco Ruggieri, called "Il Pero," a maker
of much less repute, whose violins at the utmost do not realize more than
three pistoles. Your petitioner has consequently been deceived by the
false label, and he appeals to Your Most Serene Highness for the appointment
of a legal representative, who, without many formalities and
judicial proceedings, and after ascertaining the petitioner's proofs of his
assertions, should quickly provide [relief].
That God may long preserve Your Most Serene Highness's precious
(Signed) Tomasso A. Vitali. [pp. 10-11] Harvey also provides a fairly detailed description of violin forgers' practices, including artificial distressing of varnish, simulated wear patterns, neck grafts for purported proof of conversion from baroque to the more modern neck length, creation of strategic "repaired cracks" with interior studs, and forged labels (pp. 68-73).
As with fine art, the value of a violin is greatly enhanced if the instrument is attributed to a famous maker from a particular geographic location and time period. Although musicians and collectors have traditionally sought out Italian violins from the seventeenth and eighteenth centuries, with the inflation of the prices of such violins, consumers are now discovering the merits of English, French, and German violins from the classic and postclassic periods as well as the virtues of modern violins made worldwide.
Although the practice of deception in the violin trade has continued unabated for centuries, there is a surprising dearth of reported opinions in the United States and England relating to such misdeeds (p. 15). With a virtual absence of caselaw involving the violin family from which to draw, "art law" provides the most fertile analogy for substantive law with respect to claims for misrepresentation, breach of contract, breach of warranty, replevin, and conversion, as well as related claims, because of the near identity of factual and legal issues that occur in transactions involving artwork and violins.
Harvey's book, although based on English law, discusses the same basic substantive civil claims that are likely to arise under U.S. law in cases of misattribution and misdescription, such as fraud, negligent misrepresentation, breach of contract, and breach of express and implied warranties (pp. 20-39, 46-85). In both England and the United States, a court will generally not find negligence claims meritorious if the seller uses the care, skill, and due diligence ordinarily used by reputable violin makers or dealers practicing in the same or a similar locality under similar circumstances.(3) For breach of contract and warranty claims, the seller may successfully assert various defenses, including mistake,(4) fraud, failure of consideration, an appropriately worded and conspicuous disclaimer,(5) a limitation of remedies provision in a sales agreement involving a certification of authenticity or value, and the statute of limitations.(6)
English law diverges from U.S. law with respect to stolen goods and acquisition of title. English law employs the rule of "market overt" (pp. 95-98), which Harvey describes as a "quaint, awkward, and far from creditable part of English law" (p. 99). The doctrine of market overt allows a buyer to acquire good title to stolen goods if they are purchased in good faith, without notice of any defect or want of title on the part of the seller, and sold in a "market" that is "open, public, and legally constituted by grant, prescription, or statute" (p. 96). In contrast, in the United States, a good-faith purchaser cannot generally acquire title to, or right to possession of, stolen property.7
However, the statute of limitations may bar an owner's right to recover a stolen violin. Again, the law in England and the United States differs. Harvey states that an owner's right to title in England is extinguished and his right to claim damages is barred if discovery of the theft and the whereabouts of the violin occurs more than six years from the date a good-faith purchaser buys a violin (pp. 98-99).
In sharp contrast, in the United States two rules have evolved that may toll the statute of limitations on an owner's cause of action against a good-faith purchaser arising from the theft of artwork.(8) The minority rule, known as the "demand rule," tolls the statute of limitations until an aggrieved owner discovers the stolen item's whereabouts(9) and makes a timely demand for return of the item and the wrongful possessor refuses to return it.(10) The demand rule shifts the primary burden of investigation to the good-faith purchaser and requires that she attempt to verify the provenance of artwork or a violin prior to purchase. In contrast, the majority rule, known as the "discovery rule," tolls accrual of the owner's cause of action...