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Published online by Cambridge University Press: 06 August 2009
Case
Célimène, a venerable old lady, put up a sign outside her house near Giverny, advertising the ‘sale of attic contents’. Damien, an antiques dealer on his way to visit Monet's home, stopped to look and recognised one of the master's original works among the bric-a-brac. He bought it on the spot for twice the asking price, and then proceeded to resell it to the Louvre. What remedy, if any, is available?
Discussions
Austria
Célimène, who is no art expert, has made a mistake (as to the value of the painting, see Case 1) as to the content of the contract. The difference lies in the fact that only one party has made a mistake, whereas in Case 1 there was a common mistake. Damien, as an art expert, immediately recognises the artist. Damien is not worthy to be protected in accordance with § 870 and 871 ABGB. If § 871 ABGB accepts and recognises the fact that the mistake will have to be recognised by using proper alertness and due diligence in order to entitle the mistaken party to avoid or to adapt the contract, this is even more so if the mistake not only had to be recognised but in fact had been so recognised. Scholarly opinion accepts this analogy unanimously. Célimène has, therefore, the right to annul the contract on the ground that she would not have sold the painting at all if she had been aware of the artist and its real value, or the right to adapt the contract on the basis that she would have sold the painting in any case but at a different, namely higher, price.
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