Degas bronzes battle leads to rumble in the legal jungle
New York dealer sues Canadian businessman for contract breaches, including no sales to Muhammad Ali
By Anny Shaw. Art Market, Issue 252, December 2013
Published online: 28 November 2013
A group of bronze sculptures made from plaster models of wax originals by Edgar Degas is at the centre of a court battle in New York. The US dealer Walter Maibaum is suing the Canadian businessman Yank Barry and a charity he set up for breaching several sales contracts and for failing to pay for three sets of bronze sculptures made around 2005, which Barry had agreed to purchase from Maibaum. The New York dealer is also arguing that Barry broke confidentiality agreements relating to the authenticity and dating of the plasters by publicising valuations of the bronzes by art dealers Alex Rosenberg and Stewart Waltzer, and by providing provenance documents to journalists and galleries.
Earlier this month, Maibaum filed an amended complaint in a New York court two weeks after a judge granted a motion to dismiss a previous complaint, filed in June, on the grounds that further detail was needed. Barry has until 2 December to respond; his lawyer, John Lauro, says his client will “vigorously defend this matter”.
In 2004, Maibaum, the executive director of the Degas Sculpture Project in Newark, discovered 74 plaster sculptures made from wax originals by Degas at a foundry outside Paris. In 2005, the Valsuani foundry began to produce 29 sets of bronzes from 73 of these plaster figures. Maibaum says that because Valsuani owned the plasters, it did not need permission from Degas’s heirs to cast the bronzes, and in 2007 the Succession Degas authenticated the plasters and the resulting bronze editions. However, experts are divided on the validity of these bronzes and on the question of whether the plaster sculptures that were used to cast them were made in Degas’s lifetime or after his death. Few have been willing to voice their opinions for fear of legal action (see below).
In 2008, Barry expressed an interest in buying and selling editions of these Degas bronzes. That year he signed a contract with Maibaum under the name of Mentch Investments (MI) agreeing to buy at least two sets of 73 bronzes from the New York dealer, with the option to buy eight more sets, the court papers say. But Barry failed to pay for the sculptures and no works were delivered, according to the papers. Although the purchase price is confidential, in his complaint Maibaum values one set of 73 bronzes at $20m.
In November 2009, an amended contract was drawn up specifying that Barry (as MI) would buy ten sets of 73 bronzes in six groups, with payments staggered over ten months, according to the papers. Maibaum and Barry further modified the agreement in December 2009, extending a get-out clause for Maibaum if Barry did not pay on time. Barry failed to pay for the works and, again, none were shipped, the papers say. In his complaint, Maibaum also says Barry failed to deliver, as promised, a “syndicate” of prominent buyers for the sculptures, which included the Las Vegas casino owner Steve Wynn, the former boxer Muhammad Ali and the Louvre Abu Dhabi.
In early 2010, Barry proposed that his charity, Global Village Champions Foundation (GVCF), buy a set of 74 bronzes (the edition of 73 plus a bronze sculpture of The Little Dancer, also cast by the Valsuani foundry), with a view to raffling them to raise money for the victims of the Haiti earthquake. According to Maibaum’s complaint, an edition of 74 bronzes is worth over $30m. After initially refusing, Maibaum then agreed and in June 2010 another contract was drawn up between the dealer and GVCF. After receiving $400,000 in October 2010, Maibaum shipped the 74 sculptures to Barry and GVCF, according to the court papers. Maibaum says he never received any other payments. The raffle was abandoned, with no money going to Haiti.
Maibaum says he has only received $1m and is therefore the rightful owner of all but 15 of the 74 works sent to Barry. Barry and GVCF have refused to pay for or return the remaining sculptures, and have even resold some works, the court papers say.
Barry’s lawyers say that Maibaum’s original complaint failed to state the terms and therefore the validity of the November 2009 agreement and that any contract was superseded by an option agreement that gave Barry the right, but not the obligation, to buy. The lawyers also say that it was MI, not Barry, who formed the 2009 agreement and so Barry was not liable. They also argue that Barry was not a party to the 2010 GVCF contract and so is not liable.
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