1 INTRODUCTION One of the themes to have emerged from the previous chapters is the tension between rights and remedies. According to one judge, it is the entitlement to a remedy that defines the existence of rights, whereas, according to another judge, the idea of a legal right has now liberated itself from the law of actions.
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Sir Nicolas Browne-Wilkinson VC: These proceedings relate to an oil painting by Goya called ‘La Marquesa de Santa Cruz’. By an originating summons dated 5 March 1986 the Kingdom of Spain claims certain declarations relating to three documents; two of them are dated 30 March 1983 and the third is dated 5 April 1983. Those three documents purport to

be official documents of the Government of Spain authorising the export of the picture from Spain. The declarations are sought against the first defendant, Christie Manson and Woods Ltd (‘Christie’s’), who is offering the picture for sale at auction in London on 11 April this year on the instructions of the owner of the picture, the second defendant, Overseas Art Investments Ltd (‘OAD’)…

At first sight I thought that…if it were established that the picture had been exported from Spain with the use of forged documents, Christie’s, giving effect to that clause, would not have been prepared to auction it. That certainly was the view of the plaintiffs when they started these proceedings. However, in the course of argument counsel for Christie’s made it clear that even if it were to be declared by the court that the documents were forgeries, Christie’s would feel free to continue with the sale. They take the view that [the Dealers’ Code of Practice] does not apply where the vendor has acquired the picture innocently (that is, is not implicated in the illegal export) and that such a case falls to be dealt with under clause 4. Christie’s also apparently take the view that the Spanish Government have refused to agree ‘satisfactory reimbursement’ to OAI.