BGI France - Revocation of a donation of works of art: moral or common right of revocation?

Under French law, the artist's heirs can request the revocation of a donation of a work of art for non-compliance with the charges, whatever their nature, even when they are not holders of the moral right to the work This is the lesson to be drawn from a ruling of the Court of Cassation (first civil chamber) of the 16^th of January 2019 that censures a decision of the lower court judges that restricted the right of revocation to donations subject to charges under the sole material property of the supports of the works. 

In the case presented before the Court of Cassation, an artist, Simon Hantaï, had donated fourteen of his works, paintings, to an association, indicating to the vice president of the same, by letter of the 5^th of March 1987, that "these works cannot be resold in any case and that they can only be used for exhibitions of a non-commercial and non-advertising nature". After the artist's death, the works were inherited by his wife and five children. The widow became usufructuary of the patrimonial rights of the author and the children in knot owners. As for the artist's moral rights, they have expired.

After discovering in November 2012 that one of the works included in the donation was going to be the subject of a public auction, the surviving wife was foreclosed on before the sale, and then assigned to the association the revocation of the donation for the illegal performance of charges. Her action was dismissed at first instance and on appeal. The Court of Appeal indicated, in its judgement of the 22^nd of December 2017, that the plaintiff requested the revocation of the donation, alleging that her husband's will had not been respected. According to the judges of the first instance, the charges against the donation did not refer to the material property of the supports of the works, but the moral rights of the artist. Furthermore, not being the holder of this moral right, the widow lacked the quality to act and her action was not admissible.

This solution can be explained by the wide scope of the moral law in French law. In fact, in copyright systems, moral rights are limited to copyright and the right to respect the integrity of the work. In contrast, according to French law, the moral law includes, in addition to the right to authorship and the right to integrity, the right to disclosure and the right to repentance. 

The judges of first instance considered that the moral right included the right to enforce the charges of the separate donation of the material property of the supports of the works and deduced from it that the widow, who was not the holder of the moral right, could not act to revoke the donation. 

However, the Court of Cassation censured the decision of the Court of Appeal for the violation of articles 953 and 954 of the Civil Code related to the revocation of gifts with charges. Having initially stated that the action for revocation of a gift for non-compliance with the charges may be brought by the donor or his heirs, it dismisses the distinction made by the Court of Appeal of the nature of the charges, which resulted in restricting the scope of the dismissal for non-compliance with the charges, while the donation related to tangible assets subject to restitution. Therefore, the surviving spouse had the right to act and her action was admissible, even if the moral rights corresponded to her children. Without a doubt, they also had a legitimate interest in ensuring that the charges levied on the donation were respected through the exercise of the moral right of which they were holders. However, this did not deprive the artist's widow of the right to request the judicial revocation of the donation for non-compliance with the charges. The heir to the donor had, as such, an interest in acting on the revocation of the donation.

By Sarah Lugan and Philippe Reigné