A valuable Banksy mural entitled the Bomb Damage that appeared on the front door wreckage of a home that was bombed in the Gaza Strip is at the center of an ownership dispute. According to reports, the work, which depicts Niobe, a Greek goddess who weeps for her dead offspring, was painted by Banksy during a visit the reclusive British artist/graffiti master made to the Gaza Strip in February.
Not knowing the value of Banksy's work, Rabie Darduna, the owner of the home, now only rubble, inadvertently sold the door to Bilal Khaled for a purchase price of only $174. It is reported that Khaled is a graffiti artist who has admitted to having knowledge of Banksy. Upon learning of the enormous value that Banksy works bring, Darduna, the original owner, has now filed a suit against Khaled seeking the return of the work. As a result of the suit, Palestinian officials have confiscated the door. Both parties maintain that they are the true owner of the work.
Although details of the claims have not been reported, if contract law as it applies in the United States governs, it appears from the information available, that Darduna could argue that he is the rightful owner of the Banksy because of a unilateral mistake. Although generally unilateral mistake is not a grounds to rescind a contract, under general principals of contract law, a contract based on unilateral mistake can be rescinded "if the other party knows or has reason to know of the unilateral mistake, and the mistake, as well as the actual intent of the parties is clearly shown...." See e.g. Lanci v. Metropolitan Ins. Co., 564 A.2d 972, 974 (Pa. Super. Ct. 1989); see also Lapio v. Robbins, 729 A.2d 1229, 1234 (Pa. Super. Ct. 1999). Under this circumstance, "the mistaken party may void the contract if the mistake is regarding a material term or the mistaken party may enforce the contract so that the other party for whose benefit the contract was performed will not be unjustly enriched." Lapio, 729 A.2d at 1234 (citing Lanci and Restatement (Second) of Contracts § 153). A claim for unilateral mistake must be supported by credible evidence demonstrating the mistake and the counterparty's knowledge. Thus, in this case, Darduna would need to provide evidence of Khaled's knowledge of the true value of the work. Under the facts of this case, it appears that Darduna may also argue that he was under duress as a result of the extreme stress related to the recent attack and destruction of his home.
Perhaps a solution is a sale of the work at auction and divvying of proceeds between the two interested parties or perhaps Banksy can make another anonymous mural for Khaled. It will be interesting to see if the doctrine of unilateral mistake is applied in the same way in the Gaza Strip or if Khaled can prevail on an argument that Darduna, as seller, is responsible for doing due diligence to determine the value of the work before accepting Khaled's offer to purchase. To avoid these issues, sellers must know what they are selling in order to be able to evaluate whether the purchase price is fair.
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