It would appear axiomatic that the written word in a contract will almost always trump oral representations which predate that contract—especially where the contract includes customary language which merges any prior representation giving the document the last word on the parties' rights and obligations. However, cases continue to appear before the bench which result in this hard lesson being learned, over and over again. In one such recent case before Judge Edgardo Ramos in the Southern District of New York, captioned Stephanie Clegg v. Sotheby's, 23-cv-01995 decided on Nov. 30, 2023 (2023 WL 8281487), the plaintiff learned such a lesson.

The Facts

Briefly, Ms. Clegg brought an action for monetary damages and equitable rescission against Sotheby's, Inc., arising out of her consignment of a painting, Le couple au bouquet de fleurs, c. 1950 (the "painting"), which was attributed to the renowned artist Marc Chagall. Ms. Clegg sought $175,000 in monetary damages claiming Sotheby's breached its fiduciary duty, its contract, and the implied covenant of good faith and fair dealing, as well as committing gross negligence. This writing will focus on the fiduciary duty claim.

Ms. Clegg is an art collector. She purchased the painting from Sotheby's in 1994 for $90,500. Sotheby's represented that the painting was authentic, and listed the painting's provenance as "L. Praeger, Paris; Galerie Petrides, Paris; Private Collection; and Achim Moeller Fine Art Limited, New York." The provenance did not include the date the Painting was acquired by either L. Praeger or Achim Moeller Fine Art Limited.