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works of art Art Antiquity and Law, 5(2), 105-124.
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of Art ," Art Antiquity and Law 5, no. 2 (June 2000): 105-124
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POSSESSION AND OWNERSHIP OF STOLEN OR
OTHERWISE LOST WORKS OFART
Astrid Miiler-Katzenburg*
Cases of art theft are almost as old as art itself.' In our century, organised
theft of artand otherforms of illegaltraffic in culturalproperty have, however
reached an unprecedented level whose consequences, also regarding law,
have received more and more attention in recent years. There are varied
reasons for this which involve, among other things, the 'boom' in the
internationalart trade and the accompanying price trend on the art market,
the expirationof statutoryperiodsof limitationsince World War II as well as
the opening of the Eastern Bloc and the reappearanceof art objects, long
considered to be missing or lost, made possible by that development. In this
article the author looksfirst at the different cases ofstolen, looted and otherwise
lost art, and then considers how principles of both property law andprivate
internationallaw might offer effective protection.
The contemporary significance of this topic was demonstrated again recently by
significant events such as the Gotha case2 decided by the English High Court in
*
Dr. iur., LL.M. (Columbia), member of the law firm of Clifford Chance Piinder.
1
For an overview on the historical development of the law on the protection of cultural property,
including numerous examples of art theft and sources of more detailed commentary, see Miller-
Katzenburg, InternationaleStandards im Kulturgiiterverkehrund ihre Bedeutungflir das Sach2
und Kollisionsrecht (International Standards in Transactions Involving Cultural Property and
Their Significance for Property Law and Conflict of Laws) (Berlin 1996), p. 30 et seq.
City of Gotha v. Cobert Finance SA and Sotheby's (1998) unrep., 9 September. The case
concerned a small painting, dating back to the beginning of the seventeenth century, (between 1603
and 1608), by the Dutch mannerist Joachim Wtewael. The painting was taken from Gotha to the
Soviet Union at the end of World War II and later returned to the West, where it was to be sold in
April 1992 at auction by Sotheby's on behalf of a company registered in Panama. In a civil action
filed by the City of Gotha and laterjoined by the Federal Republic of Germany, the London court
decided in the end that the Wtewael painting was to be turned over to the Federal Republic of
Germany as the owner. For details of the decision, see Franz, 'Test Case on Looted Art Decided:
Painting by Wtewael Returned to Germany', Spoils of War No. 6/Feb. 1999, p. 7; Pearson,
'Looted Art Immune to Limitation Period', The Lawyer Vol. 12/ Issue 41, p. 18; Criiwell, Hdinde
weg von Beutekunst - Diebesgut verjdihrt nicht mehr: Ein Londoner MusterprozeB trocknet den
grauen Markt aus, FrankfurterAllgemeine Zeitung, 4 November 1998, No. 256/ p. 41; A. Mair
'Misappropriation and Skullduggery in Germany and Russia: the case of Wtewael's The Holy
Family' (1998) Art Antiquity and Law, p. 413; P. Lomas and S. Orton 'Potential Repercussions
from the City of Gotha Decision' (1999) Art Antiquity and Law p. 159; 'Time does not Run in
Favour of Thief,' The Times, 8 October 1998 as well as references infra at II. no. 5; N.E. Palmer,
Museums and the Holocaust, pp. 75-78.
105
VOL. 5,
ISSUE 2
ART ANTIQUITY AND LAW
JUNE 2000
September 1998, by the transformation at last into German law of EU Directive 93/7
on the Return of Cultural Objects Unlawfully Removed from the Territory of a Member
State3 through the Kulturgutsicherungsgesetz (Act on the Safeguarding of Cultural
Property) of 15 th October 19984 and by the discussion concerning the return of
Jewish cultural property which took place at the Conference on Holocaust-Era Assets
held in Washington in December 1998. Nevertheless, the applicable principles and
the special aspects of international law are little known to many lawyers.
This article is intended to provide assistance by first making clear the
necessary differentiation between various types of art theft and then briefly
summarising the relevant principles of property law and conflict of laws.
L
CONCEPTUAL DIFFERENTIATION
In addition to the trade in illegal narcotics and firearms, the 'dirty business in fine
arts' is considered today to be one of the most lucrative businesses on the black
market. There are no exact figures concerning the annual turnover in the trade
with stolen cultural property, but the various estimates agree on a minimum of
several billion Deutschmarks a year.6
Whenever there is any mention in statistical reports, the news media or
other public discussions of 'art theft', 'illegal traffic in cultural property' or 'trading
in art on the black market', the reference is not necessarily merely to cases of
stolen works of art in the narrow sense. For one thing, not every piece of cultural
property is also a work of art; the term 'cultural property' is rather a generic term
which also covers works of art, in addition to such different things as historical
documents, antique furniture and archaeological objects. For another, by no means
can all types of cases placed under the heading 'art theft', from so-called 'looted
art' to the seizure of allegedly 'degenerate art' and Jewish-owned art to illegal
archaeological excavations and smuggling of art, be lumped together and they
definitely cannot all be placed under the statutory definition of theft.
1.
Cases of Looted Art
These cases include, above all, art objects moved as a result of war: this means in
our century, in particular the art objects carried off, (for the most part systematically)
by governmental direction during and immediately after World War I and World
War II. These include, for example, the art objects which remain stored in Russian
'secret depots' having been taken by the thousands from German depots (including
3
4
5
6
Directive No. 93/7 of the Council of the European Community of 15 March 1993, O.J. No.
1174 of 27 March 1993, 74 and concerning that, e.g., Mtiller-Katzenburg, loc. cit. (supra
footnote 1), pp. 111 et seq.; Siehr, 'Handel mit Kulturgiltern in der EWG', NJW 1993, 22062209.
BGBl. 1998 I No. 70, p. 3162.
See in this regard the 'State Bar Committee on Legal Aspects of the Arts', Tex. BarJ. (1992)
237 with additional citations.
See the citations and figures at Miller-Katzenburg, loc. cit. (supra footnote 1), p. 56
footnote 146.
106
POSSESSION AND OWNERSHIP OF STOLEN OR OTHERWISE LOST WORKS OF ART
objects captured by the Nazis in the occupied territories), museums and private
collections as spoils of war and brought into the Soviet Union by the Red Army and
the Soviet military administration at the end of World War II and whose return is
being demanded by the Federal Republic of Germany on the basis of, inter alia,
article 16 para. 2 of the German-Soviet Treaty on Good Neighbourly Relations of
1990.7
It is, of course, possible that the looted art cases overlap with those cases
described in section 2 below. In particular, it has happened (and continues to happen
again and again) that individual members of the military violate internal regulations
and 'set aside' art objects for themselves. A particularly well-known example of
this is the case of the Quedlinburg cathedral treasures. This involved an 'Evangeliar',
a liturgical book which is of the highest art-historical significance, and further objects
which are among the most valuable German art treasures dating back to the Middle
Ages.8 An American soldier took these objects from Quedlinburg in April 1945,
packed them in wrapping paper and sent them by military mail to his home in
Whitewright, Texas. The attempt by his heirs to sell the unique treasures quickly
attracted the attention of the relevant circles in the art trade and, finally, of the
original owner, the parish of St. Servatii Cathedral in Quedlinburg. 9
The fact that, in the case of looted art, seizure and removal are occasioned
by the government, means that any claims in the respect thereof must first be
examined on an international basis, before any private claims to restitution can be
considered.
2.
SEIZURE OF SO-CALLED 'DEGENERATE ART'
The infamous exhibition 'Degenerate Art' took place in Munich in 1937.10 The list
of exhibited artists reads like a Who's Who of modern art. Barlach, Beckmann,
Chagall, Corinth, Dix, Grosz, Kandinsky, Kirchner, Klee, Kokoschka, Lehmbruck,
Marc, Mondrian, Nay, Nolde, Schlemmer and many more are among the artists
whose works the Nazis condemned as 'degenerate'. These works were seized
7
8
9
10
Article 16 II of the Vertrag lber gate Nachbarschaft, Partnerschaftand Zusammenarbeit
zwischen der Bundesrepublik Deutschlandandder Union der SozialistischenSowjetrepubliken
(Treaty on Good Neighborly Relations, Partnership and Cooperation Between the Federal
Republic of Germany and the Union of Soviet Socialist Republics) of 9 November 1990,
BGBl. 1991 II, p. 702, provides that "lost or wrongfully acquired art treasures which are
located on their territory shall be handed over to the owner or his legal successor". With
regard to the overall topic, see, e.g., Friemuth, Die geraubte Kunst, Braunschweig 1989, and
with regard to 'Russian Looted Art' Akinscha/Koslow, Beutekunst, Munich 1995.
On the outstanding art-historical significance of the Quedlinburg cathedral treasures, see, e.g.,
the articles in: KulturStiftung der Lander 25 (1991), 'Das Samuhel-Evangeliar aus dem
Quedlinburger Dom' as well as 30 (1992), 'Der Quedlinburg Schatz' (2nd corrected edition
Berlin 1994).
For more details on this case, see Miller-Katzenburg loc. cit. (suprafootnote 1), pp. 334 and
343; Redmond-Cooper 'Quedlinburg Indictment comes too Late' (1998) Art Antiquity and
Law, p. 307.
It is less well known that the Nazis also organised a corresponding exhibition entitled 'Entartete
Musik' (Degenerate Music). This exhibition took place in DUsseldorf in 1938.
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VOL. 5,
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ART ANTIQUITY AND LAW
JUNE 2000
and later destroyed or sold in foreign countries by the Commission on the Sale of
Seized Works of Degenerate Art (Kommission zur Verwertung der
beschlagnahmtenWerke entarteterKunst), which was founded in 1938 by Reich
Propaganda Minister Joseph Goebbels as a means of obtaining foreign currency.11
On 31S" May 1938, the Reich government passed the 'Act on the Confiscation
of Objects of Degenerate Art' ('Gesetz fiber die Einziehung von Erzeugnissen
entarteter Kunst').12 According to § 1 of this Act:
The objects of degenerate art which, before this Act became law, were
impounded in museums and collections open to the public and were
determined by an authority named by the Fihrer and Reich Chancellor to be
objects of degenerate art,
. .
. can be confiscated by the Reich without
compensation having to be paid if they were the property of Reich citizens or
domestic legal entities at the time of impoundment.
Thus, the works confiscated at that time from foreigners (both within the borders
of the Reich and later in the occupied territories) were from the outset not even
covered by the law. This aspect was apparently not discussed by the Munich
District Court in its 1993 decision on the claim for the return of the painting
Sumpflegende by Paul Klee which was confiscated in 1937 as 'degenerate art',
although the mother of the plaintiff and owner at the time was a Russian citizen.13
Aside from that, it must be doubted, moreover, that the confiscations ordered
by the Nazis of art branded as 'degenerate' could have as a consequence a legally
valid change of ownership rights. According to the view already taken by the
famous German legal philosopher Radbruchl 4 and later confirmed by the Federal
Constitutional Court," even an enacted statute will fail to have legal effect where
its terms are, to an intolerable degree, incompatible with the rules of natural justice. 16
This is not the place to expound upon the Radbruch formula. However, it is
clear that the German Reich, contrary to the provision of § 2 para. 1 of the Act on
the Confiscation of Degenerate Art, could not become owner of the confiscated
11
12
13
14
15
16
The sales occurred mostly by auction in Switzerland. Probably the most spectacular of those
auctions was the auction 'Gemalde und Plastiken moderner Meister aus deutschen Museen'
(Paintings and Sculptures by Modem Masters from German Museums) conducted by Galerie
Fischer in Lucerne in 1939; for more details see the articles by v. Littichenau and Lott, in:
Schuster (Editor),Nationalsozialismusund 'EntarteteKunst', Munich 1937; cf. also Barron,
'Entartete Kunst' - das Schicksal der Avantgarde im Nazi Deutschland, Munich 1992;
Zuschlag, 'EntarteteKunst'. Ausstellungsstrategienim Nazi-Deutschland,Worms 1995.
RGB1 1938 I, p. 612.
See the decision of the Landgericht Miinchen I of 8 December 1993, IPRax 1995, p. 43 and
the comments of the editors, ibid.
Radbruch, 'Gesetzliches Unrecht und iibergesetzliches Recht', SJZ 1946, pp. 105, 107.
Decision of the Bundesverfassungsgericht (BVerfG) of 14 February 1968, BVerfGE 23, 98.
The Federal Constitutional Court (BVerfG) formulated the Radbruch Formula in the decision
cited at footnote 15 as follows: "Nazi 'legal' provisions can be denied validity as law if they
so clearly contradict fundamental principles of justice that the judge who applied them or
recognised their legal consequences would pronounce injustice instead of justice."
108
POSSESSION AND OWNERSHIP OF STOLEN OR OTHERWISE LOST WORKS OF ART
works.1 7 Certainly, neither the confiscation nor the preceding seizure can, as
sovereign acts, be equated to theft as defined by § 242 of the German Criminal
Code (Strafgesetzbuch, StGB). However, it can be argued that the works which
were seized as 'degenerate art' had been 'lost' in the sense of § 935 para. 1 sent.
1 of the German Civil Code (Bilrgerliches Gesetzbuch, BGB) by their owner, at
the latest, when they were confiscated. As a matter of consequence, a third person
could not rely on good faith, because § 935 BGB stipulates that even a good faith
purchaser cannot acquire title to any stolen or otherwise lost object.
3.
Dispossession of Jewish-owned Art
The latter also must apply with regard to Jewish-owned works of art." The Federal
Supreme Court (Bundesgerichtshof BGH) expressly held that as the order for
the confiscation of Jewish property based on the relevant national socialist laws,
the 'liquidation' of Jewish-owned businesses, etc., were illegal or, rather, "never
justice, and instead were injustice already at the time of their formal validity." 19
This was taken into account in the restitution and compensation laws, initially in the
laws of the military governments of the (Western) Allies and later in the Federal
20
Restitution Act (Bundesrtickerstattungsgesetz).
18
19
20
Coming to the same result, though more cautiously formulated: Jayme, 'Entartete Kunst'
Rechtsfragen heute, Akademie-Journal 2/94, pp. 12, 13; already the same result in Reich/
Fischer, 'Wem gehoren die als entartete Kunst verfemten, von den Nationalsozialisten
beschlagnahmten Werke?', NJW 1993, pp. 1417, 1419.
There is also the possibility of overlap with regard to these cases. For example, in the large
Jewish collections there were also numerous works which, when they were on loan to
museums or public collections, were seized as 'degenerate art', in some cases fully without
regard to their specific 'origin'. The determination is of definite practical relevance because
the restitution laws passed in Germany after World War II grant a claim to restitution only to
those persons whose property had been "seized from them by reason of race, religion,
nationality, world view or political opposition to national socialism"; see, e.g., article 1 no. 1
REG AmZ (Law No. 59). The restitution requests in the 1950s and 1960s of many of the
original owners of so-called 'degenerate art', made on the basis of the restitution laws, were
rejected with the argument that the confiscation of 'degenerate art' was directed not against
the owners or possessors but against the art itself, cf., e.g., decision of the Oberlandesgericht
(OLG) Celle of 8 May 1951, RzW 1951, p. 201 (No. 14); decision of the OLG Dusseldorf
of 26 July 1952, RzW 1952, p. 266; decision of the Kammergericht Berlin of 8 January 1965,
RzW 1965, p. 161.
See decision of the Bundesgerichtshof (BGH) of 8 October 1953, BGHZ 10, 340, 344/345
with further citations.
Cf. for the American Zone: Gesetz Nr. 59 ilber die Rilckerstattungfeststellbarer
Vermdgensgegenstande (Law No. 59 on the Restitution of Identifiable Property) of 10
November 1947; for the French Zone: VerordnungNo. 120 ilber die Riickerstattunggeraubter
Vermdgensgegenstande (Ordinance No. 120 on the Restitution of Stolen Property) of 10
November 1947; for the British Zone: Gesetz Nr 59 ilber die Riickerstattungfeststellbarer
Vermdgensgegenstande (Law No. 59 on the Restitution of Identifiable Assets) of 12 March
1947; for West Berlin: Rickerstattungsanordnung(Restitution Order) of 26 July 1949; for
the Federal Government: Bundesgesetz zur Regelung der rickerstattungsrechtlichen
Geldverbindlichkeitendes DeutschenReichs und gleichgestellterRechtstrager(BRiiG) (Federal
Act on the Settlement Under Restitution Law of Monetary Debts of the German Reich and
-
17
109
VOL. 5,
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JUNE 2000
Illegal Archaeological Excavations
Finds from illegal archaeological excavations cannot necessarily be viewed as
'stolen' in a strict legal sense 21 because there is not always an owner to whom the
property belongs, or even a custodian. According to the generally accepted definition
under German criminal law, 'taking' is, for the purposes of the statutory definition
of theft in § 242 of the Criminal Code, "a violation of third-party custody and the
establishment of new custody against or, in any case, without the will of the former
custodian", the term 'third-party' indicating that the property taken belongs to a
party other than the party who takes it. 22
In deviation from § 984 Bilrgerliches Gesetzbuch, according to which, in
the case of a 'discovered treasure', the finder and the owner of the land on which
the treasure was hidden become owners in equal shares of the treasure, the historical
preservation laws of numerous federal states (Bundesliinder)23 similar to the
laws of other countries 24 provide in the case of the discovery of "movable objects
of cultural heritage which have no owner or have been hidden for so long that their
owner can no longer be determined" 25 that the State or, as the case may be, the
country concerned automatically acquires ownership rights. 2 6
The so-called umbrella statutes of not only numerous Latin American
countries, but also African and Asian countries and even a few European countries,
go even further. These statutes make a general declaration that certain cultural
property is the property of the respective country, even if the cultural property has
not been excavated or even discovered. 27 The operation of these laws, which
21
22
23
24
25
26
27
[20 cont.]Legal Entities of Equal Rank) of 19 July 1957, BGBl. 1957 I p. 734, and the
Bundesgesetz zur Entschddigungflir Opfer der nationalsozialistischenVerfolgung (BEG)
(Federal Act on the Compensation for Victims of Nazi Persecution) of 29 June 1956, BGBl.
1959 Ip. 559; see also GesetzzurRegelungoffenerVermdgensfragen (Unsettled Proprietorship
Issues Act) of 4August 1997, BGBl. 1997 Ip. 1974 andNS-Verfolgten-Entschidigungsgesetz
(National Socialist Persecuted Persons Indemnification Act) of 27 September 1994, BGBl.
1994 I p. 2624, 2623.
See, however, the UNIDROIT Convention On Stolen Or Illegally Exported Cultural Objects
of 1995 (reprinted, e.g. in Mtiller-Katzenburg loc. cit. - supra footnote 1 - Annexe III) which
provides in article 3 II explicitly that "[f]or the purposes of this convention, a cultural object
which has been unlawfully excavated or lawfully excavated but unlawfully retained shall be
considered stolen..."
Cf. instead of many Eser in Schonke/Schroder, Kommentar zum StGB, 25th edition (1977),
§ 242 no. 12.
See, for example, § 23 DSchG BW, § 19 Brem DSchG, § 19 a RpDschPflG, § 23 SaarlDSchG,
§ 8 DSchG HH.
See, for example, article 724 of the Swiss Civil Code (Schweizer ZGB); section. 11 of the
New Zealand Antiquities Act of 1975 and, for more detail, Milller-Katzenburg loc. cit.
(supra footnote 1), pp. 67 et seq. with further citations.
The wording of § 23 of the DSchG BW.
On the constitutionality of § 23 DSchG BW and similar laws of the federal states which
deviate from § 984 of the Civil Code, see the decision of the BVerfG of 18 May 1988,
BVerfGE 78, 205.
For a list of countries which have passed such 'umbrella statutes', see Moore, 97 Yale L. Y
471 footnote 26 (1988).
110
POSSESSION AND OWNERSHIP OF STOLEN OR OTHERWISE LOST WORKS OF ART
critics describe as being mere 'paper tigers',28 is not always recognised outside
the country in question. However, two significant cases in this regard occurred in
the United States of America, which occupies a pre-eminent position in the art
trade and where many archaeological finds accordingly end up. Here, the US
courts held that illegally exported pre-Columbian archaeological finds which had
been declared to be State property in their countries of origin, Guatemala and
Mexico, constituted 'stolen' goods, within the definition laid down by the National
Stolen Property Act (NSPA). 29 Although 'property of a very special kind',30 this
property of foreign States established by the force of law on the strength of State
sovereignty is still a legal position which is to be recognised as full ownership and
is to be protected accordingly by the relevant domestic laws.31 The objection that
ownership always requires possession and that the simple ex lege declaration is
thus not sufficient for the acquisition of ownership rights was not recognised by the
court. The court made clear: "Possession is but a frequent incident, not the sine
qua non of ownership, in the common law or in the civil law." 3 2
5.
Illegal Export of Art Objects
&
Almost all countries now have export restrictions for cultural property.33 A violation
of such export restrictions can have various consequences, depending on the type
of rule concerned. For example, there are national export restrictions which provide
that ownership of illegally exported cultural property automatically passes to the
country of export at the point in time of export.34 Such provisions are intended to
enable the country of export to demand from the wrongful possessor the return of
the illegally exported property according to the normal provisions of property law.
Otherwise, despite signs of disintegration35 the principle of the nonapplicability of foreign public law, which includes export regulations, still applies,
generally internationally. This means that, in principle, the violation of foreign export
regulations is ignored by domestic courts.
A clear example of this is offered by a case decided in England in the year
1918: King of Italy v. Cosimo De Medici Tornaquinci and Christie Manson
Woods.3 6 This case concerned a civil action filed by Italy seeking a temporary
28
29
See, in particular Merryman, 83 Michigan L.R. 1890 f. (1985); Merryman, 21 U. C. Davis
L.R. 486 et seq. (1988); Merryman/Elsen, Law, Ethics and the Visual Arts, Vol. I, 2nd edn.
Philadelphia 1987, pp. 120 et seq.
Cf. US v. McClain, 545 E 2d 988 (5th Cir. 1977), rehearing denied 551 F. 2d 52 (5th Cir. 1977),
aff'd in part, rev'd in part 593 F. 2d 658 (5th Cir. 1979), cert. denied 62 L.Ed. 2d, 173 (5th Cir
1979); US v. Hollinshead, 495 F. 2d 1154 (9th Cir. 1974).
30
US v. McClain, 545 F. 2d 988, 996 (1977).
31
32
33
US v. McClain, 545 F. 2d 988, 1002 et seq. (1977).
US v. McClain, 545 F. 2d 988, 992 (1977).
For an overview of such laws, see, e.g., UNESCO (Publisher), Handbook of National
Regulations Concerningthe Export of culturalProperty, CC. 88/WS/27, Paris 1988.
See, for example, section 9 of the Australian Protection of Movable Cultural Heritage Act of
1986 and, for more detail, Miller-Katzenburg, loc. cit. (supra footnote 1), p. 83.
See for more detail in this regard Mtiller-Katzenburg, loc. cit. (supra footnote 1), p. 179 et seq.
(1918) 34 T.L.R. 623; 14 Riv. Dir Int. 1921/22, 194.
34
35
36
111
VOL. 5,
ISSUE 2
ART ANTIQUITY AND LAW
JUNE 2000
injunction to prevent the auction of illegally exported Medici archives. The English
judge granted the relief requested, but only with regard to the documents for which
Italy could assert a right of ownership. As for the remaining documents, Italy was
able to claim only a violation of its export regulations for the protection of antiquities
and art objects. The English judge considered this to be insufficient for an assumption
of the possibility of an order of restitution in favour of the Italian State, which was
required for the issue of the requested temporary injunction.
Today, the English judge would probably decide otherwise. Within the
European Union at any rate, this principle of the non-applicability of foreign public
law has been eroded by Directive 93/7 on the Return of Cultural Objects Unlawfully
Removed from the Territory of a Member State. Despite the partially bitter
resistance from all sides of the art trade, this Directive has been transformed by all
Member States of the EU into their respective national law.37 As a result of this,
the return of even 'merely' illegally exported cultural property can now be demanded
within the Community by the country of origin. Legal disputes such as those
concerning the Medici documents or the Goya portrait La Marquesa de Santa
Cruz illegally exported from Spain,38 which once again can be admired in the
Prado, can thus no longer be decided by courts by reference to the non-applicability
of foreign export prohibitions. On the other hand, in cases such as the one decided
by the English courts concerning the civil action of New Zealand for the return of
a valuable, illegally exported Maori door,3 9 the above-mentioned principle will
probably continue to apply for the time being. It is also foreseeable that the
UNIDROIT Convention on the Return of Stolen or Illegally Exported Cultural
Property of 2 4th June 1995,40 (which also seeks to counteract the illegal traffic in
cultural property through the creation of uniformly applicable provisions of substantive
civil law), will presage little change in the near future because the UNIDROIT
Convention is far from attaining general acceptance and, consequently, ratification,
especially by those States which are major importing States of cultural goods.
6.
Theft of Works ofArt
Just as with the smuggling of art, it is an especially serious aspect of art theft that,
again and again, unique works are irretrievably lost or stolen. For instance, paintings
are cut from their frames and figures are sawn into several parts to make it easier
37
38
39
40
Most recently by Germany through the Act on the Safeguarding of Cultural Property
(Kulturgutsicherungsgesetz) of 15 October 1998 (supra footnote 4); see, for more detail
Muj3gnug (in this issue, p. ... ).
Kingdom of Spain v. ChristieManson & Woods and another [1986] 3 All.E.R. 28, 1 W.L.R.
1120 Ch.D.
Attorney GeneralofNew New Zealand v. Ortiz [ 1982] 1 Q.B. 349, [1984] 1 A.C. 1.
See in this regard, only recently again, Lalive, 'Une Convention Internationale Qui D6range: La
Convention UNIDROIT sur les Biens Culturels', in: Melangesen l'Honneurde Nicolas Valticos,
Paris 1999, p. 177 (for an English translation, see (1999) 4 ArtAntiquity and Law 219).
112
POSSESSION AND OWNERSHIP OF STOLEN OR OTHERWISE LOST WORKS OF ART
to transport them unnoticed.4 1 The unique nature of art works and other cultural
goods and their special need for protection thus make it especially urgent that the
illegal traffic in cultural property and associated practices be stopped.
With regard to stolen objects, the legal possibilities, at first glance, appear to
promise success because there are traditionally certain special provisions on stolen
property in domestic and foreign law which set stolen property apart from other
property.42 In principle, with regard to stolen property, protection of safety and
ease in legal relations takes second place to protection of owners. However, there
are also important breakthroughs and exceptions, which will be dealt with below.
H.
PRINCIPLES OF PROPERTY LAW AND CONFLICT OF LAWS
1.
Applicable Law
In international property law, which governs the question of the law applicable to
in rem relations, the principle of lex rei sitae is widely recognised. According to
this principle, the validity of a transfer of a tangible movable and its effect on the
proprietary rights of the parties thereto and of those claiming under them in respect
thereof, are governed by the law of the country where the movable is at the time of
the transfer (lex situs). If the object is moved from one jurisdiction to another, this
leads to a change in jurisdiction with regard to property law, with the consequence
that the law of the new situs of the object is decisive concerning existing rights of
possession and ownership, as well as other in rem rights. In accordance with the
situs rule, the law of the new situs also decides whether, under what conditions
and with what effect rights in stolen property can be acquired.
In Germany, the situs rule is not expressly stated in statute; however, court
decisions and academic doctrine have long recognised it under legal custom as a
basic principle of international property law. 43 Similarly, in several other countries the
44
situs rule has become established as the written or unwritten conflict of law norm.
The conflict of laws principle of the situs as the main connecting factor has
pointed the way for the result in many court decisions concerning transactions in
international cultural property. For example, the Tribunale di Torino in the matter
Repubblica dell' Ecuador contro Danusso, in accordance with article 22 of the
41
42
43
44
Cf., e.g., the facts which were the basis for the decision in US v. Hollinshead(suprafootnote
29). In that case, a pre-Columbian stele of great significance for research into Mayan
hieroglyphics was sawn into nineteen pieces for its transportation to the United States. With
regard to predatory archaeological excavations, there is the added danger of the loss of
valuable information through the destruction of the special context of the find, which is
irretrievably lost when excavations are carried out in an unauthorised manner without using
methods of scientific documentation.
See, for example, in German law § 935 para. 1 BGB, cited supra at no. 1.2.
Cf. only the decision of the Bundesgerichtshof of 8 April 1987, BGHZ 100, 321, 324, NJW
1987, 3077, 3079; Staudinger-Stoll, EGBGB/IPR, Internationales Sachenrecht, 13th edn
(1966), no. 123; Kegel, Internationales Privatrecht, 7th edn (1995), § 19 I; Kropholler,
InternationalesPrivatrecht, 3 rd Edition (1997), § 54 1. 1, each with further citations.
Cf., e.g., article 51 of the Legge 21 maggio 1995, n. 218 - Riforma del sistema italiano di diritto
internazionale privato; article 10.1 of the introductory title of the Spanish C6digo Civil.
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Dispositioni preliminari of the Italian Codice Civile, applied Ecuadorian law to the
question of whether Danusso had acquired ownership rights in pre-Columbian
archaeological finds which had been illegally exported to Italy.4 5 In that regard, it
was important that Danusso had acquired the archaeological objects in Ecuador,
and as a result, under the authority of Ecuadorian law. As far as Danusso, on the
other hand, had already sold parts of his collection in Italy, Italian law was applicable
to these sales, with the consequence that, according to articles. 1153 and 1154 of
the Codice Civile, ownership of this property could be acquired in good faith.
It was this consequence which, in the famous decision of Winkworth v.
Christie's,46 led to the dismissal of the civil action of the art collector William
Wilberforce Winkworth for a declaratory judgment that he was the owner of
Japanese works of art which had been stolen from him in England. The works of
art had been taken to Italy and sold there to an Italian marchese, before the latter
turned them over to the auction house Christie's in London to be auctioned.
Accordingly, the English High Court decided that the acquisition of ownership by
the marchese was to be judged exclusively according to Italian law as the decisive
lex rei sitae. Unlike under English law, the marchese, allegedly acting as a good
faith purchaser, could thus acquire ownership of the works of art under articles
1153 and 1154 of the Codice Civile, even though they were stolen property.
An American judge would probably have been more willing to deviate from
the lex rei sitae. In the United States, as under English law, the applicable principle
is that the validity of a transfer of a movable object is subject to the law of the
country where the object is located at the time of the transfer. 47 However, this
principle is simply the result of the presumption that the lex situs has "the most
significant relationship to the parties, the chattel and the conveyance. . . ." This
presumption can be rebutted if the facts and circumstances of the individual case
point to a closer connection with another jurisdiction. 48 A case in which a U.S.
federal court took this view is that of Cyprus v. Goldberg,49 which has received
much attention in international cultural property law. This decision concerned the
proprietary rights in valuable Byzantine mosaics which had been stolen from a
Greek Orthodox church in the northern part of Cyprus, which is occupied by Turkey.
In July 1988, Peg Goldberg, an art dealer from Indiana, purchased four of the
mosaics in Geneva for $ 1,080,000 and then took them to the United States. Her
46
47
48
49
Trib. Torino of 25 March 1982, 18Riv. dir. int.priv.proc. 1982, 625 628 f.; affirmed by App.
Torino of 28 January 1983 (unpublished decision, reported by Clerici, 25 Riv. dir int. priv.
proc. 1989, 805 footnote 34).
Winkworth v. ChristieManson and Wood Ltd [1980] 2 W.L.R. 1937.
Restatement, Second, 'Conflict of Laws' § 244 (2) (1971).
Restatement (previous footnote) § 244 (1) and Comment g.
Autocephalous Greek-Orthodox Churchof Cyprus and the Republic of Cyprus v. Goldberg
Feldmann FineArts, Inc., and Peg Goldberg, 717 F. Supp. 1374 (S. D. Ind. 1989), aff'd 917
F. 2d 278 (7th Cir. 1990) and concerning that case, e.g., Foutty, Autocephalous Greek-Orthodox
Church of Cyprus and the Republic of Cyprus v. Goldberg & Feldmann Fine Arts, Inc.:
'Entrenchment of the Due Diligence Requirement in Replevin Actions for Stolen Art', 43
Vand. L. Rev. 1839-1861 (1990). See also,passim, N. Augustinos, 'The Protection of Cultural
Heritage in the Event of Armed Conflict: the Cyprus Experience,' in Recovery of Stolen Art
(1998) Kluwer Law International and Institute of Art and Law.
&
45
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POSSESSION AND OWNERSHIP OF STOLEN OR OTHERWISE LOST WORKS OF ART
attempt to sell them there caught the attention of a member of the staff of the
Getty Museum in California, who informed the responsible Cypriot officials. The
Cypriot officials then filed a civil action for the restitution of the works of art,
which are among the few Byzantine mosaics which were not destroyed during the
eighth century iconoclastic movement. Goldberg based her defence against the
claim for restitution on, among other points, the argument that, according to the
situs rule, Swiss law was applicable to her purchase and, according to article 934
in conjunction with article 714 of the Swiss Civil Code, she had acquiredbonafide
ownership of the mosaics, which had undisputedly been stolen between 1976 and
1979. The Federal District Court for the Southern District of Indiana, whose decision
was upheld by the seventh Circuit Court ofAppeals, considered not Swiss law, but
the law of Indiana to be applicable because the latter had the closest connection to
the facts of the case: the mosaics were in Switzerland for only four days before
they were taken to the United States and none of the parties had any connections
with Switzerland. On the other hand both the legal residence and place of business
of the defendant were in Indiana. Moreover, the court based its conclusion on the
most significant relationship test confirmed by the fact that Swiss conflict of laws
would also have called for application of the substantive law of Indiana. In cases
of transfer of ownership, Swiss conflict of laws turns, in principle, to the lex rei
sitae.o However, an exception is made with regard to the so-called res in transitu,
to which not the law of the place of transit, but the law of the destination applies."
The federal district court considered this exception and, thus, the applicability of
the law of Indiana as given because, from the Swiss point of view, the mosaics
were in transit when they were stored in the duty-free area of the Geneva airport.5 2
2.
Legal Protection of Ownership v. Legal Protection ofAcquisition
The cases mentioned above demonstrate that the central question in cases
concerning stolen or otherwise lost objects of art is generally whether priority is to
be given to the original owner or his heirs, on the one hand, or the party purchasing
the object in good faith, on the other. The answer to this question decides whether
the former has a claim to restitution from the latter. The interests of these groups
are legitimate and worthy of protection, particularly since, with regard to protection
of the purchaser, there is, in addition to the personal interest of the individual goodfaith purchaser in the legal validity of his purchase, the common interest in the ease
and security of legal relations. On the other hand, it should be obvious that neither
the thief nor the bad-faith purchaser can be permitted to prevail against the original
50
51
52
Cf. decision of Swiss Federal Court (Schweizer Bundesgericht) 13 December 1968 inKoerfer
gegen Goldschmid (action for the restitution of two paintings by Toulouse-Lautrec), BGE
94 II, 297, 303 and now also article 100 of the Swiss Bundesgesetz ilber das Internationale
Privatrecht (IPRG) (Federal Law Concerning Conflict of Laws) of 18 December 1987,
reprinted at IPRax 1988, 376 et seq.
Cf. article 101 of the Swiss JPRG (previous footnote), which is not applicable to the present
case which occurred before the law took effect, but which conforms to prevailing opinion
already previously represented in Swiss conflict of laws.
Cyprus v. Goldberg (supra footnote 49) 1393-1395.
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owner's claim for restitution. 53
On the international level, the answer to the question of balancing protection
of the transaction and protection of the owner varies. In those countries with an
Anglo-American legal system, the nemo dat rule (nemo plus juris ad alium
transferrepotest quam ipse habet), which goes back to Roman law, traditionally
applies. According to that rule, no one can transfer greater rights in property than
he himself holds. Accordingly, in principle, no ownership rights can be acquired in
stolen property, not even where the purchaser has acted in good faith. 54 Likewise,
in most Continental European legal systems, the principle applies that a bonafide
acquisition of ownership of stolen goods is ruled out. However, this principle is
broken, more or less frequently, in various national jurisdictions by numerous
exceptions and restrictions. For example, in Germany, the exception of § 935 para.
2 Bilrgerliches Gesetzbuch, which is very important for the art trade, applies.
According to that provision, even stolen or otherwise lost property can be acquired
in good faith at public auction.5 5 And any person who in France, Spain or Switzerland,
for example, purchases a stolen article in good faith at a public market or from a
merchant who deals in goods of the same kind is obliged to return the article to the
owner only if the owner reimburses the purchase price. 56 In Poland, it is even
generally possible to acquire lost, stolen or otherwise missing property in good faith
after the "expiration of three years from the point in time the property was lost or
stolen or otherwise became missing" .5' Additional examples could be provided.
The most far-reaching is Italian law, which has completely broken with the principle:
Art. 1153 Codice Civile generally permits a bonafide acquisition of ownership
rights in movable property and thus in stolen objects as well. In allusion to this
special feature of Italian law, dealers speak of the so-called 'Italian connection'.
Regardless of the different types of rules on acquisition of ownership in the
various legal systems, it should not be overlooked that the owner from whom a
work of art is stolen can lose his claim for restitution of the work not only through
53
54
55
56
57
See also infra no. 5 in this regard.
Indeed, there are also exceptions to the nemo dat rule in common law. However it must be
added that, in England, after long negotiations between art dealers, insurance companies and
the police, the often cited privilege of 'sale in market overt' was abolished as from 3 January
1995 (for the old rule, see the repealed section 22 of the Sale of Goods Act 1979).
For an example in a court decision, cf. the case of the Hamburg city seal: decision of the
Bundesgerichtshof (BGH) of 5 October 1989, NJW 1989, 899 and the decision of the Federal
Administrative Court Bundesverwaltungsgericht, (BVerwG) of 12August 1993, NJW 1994,
144, subsequent to the decision of the Oberverwaltungsgericht (OVG) Mtinster, OVG) of 25
February 1993, NJW 1993, 2635 and the decision ofVerwaltungsgericht Cologne (VG) of 20
March 1991, NJW 1991, 2584. Regarding an exception found in the Greek Astikos Kodix
which is comparable to § 935, see Siehr, 'Zivilrechtliche Fragen des Kulturgilterschutzes', in:
Reichelt (Ed.), InternationalerKulturgiiterschutz, Wiener Symposium, 18-19 October 1990,
Vienna 1992, pp. 42, 44 footnote 12.
Cf. article 2280 I Code Civil, article 464 C6digo Civil and article 934 II of the Swiss
Zivilgesetzbuch. In addition, French and Swiss law require that the claim for restitution must
be made within a few years: within three years since the loss or theft pursuant to French law
and within five years according to Swiss law, cf. article 2279 I Code Civil and article 934; I
ZGB. See also infra footnote 27 and accompanying text.
Cf. article 169 of the Polish Civil Code of 23 April 1964.
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POSSESSION AND OWNERSHIP OF STOLEN OR OTHERWISE LOST WORKS OF ART
the derivative acquisition by a third party in good faith, but also through the mere
lapse of time. In this regard, a bonafide acquisition through prescription as well as
the expiration of the period of limitation (or under certain circumstances, through
equitable estoppel) of the owner's claim to restitution come in question. Here, as
well, the respective deadlines differ from jurisdiction to jurisdiction." Thus, in
accordance with the situs rule, it can be decisive with regard to a legal dispute
when an object was at a certain location.
3.
Requirements for Good Faith of the Acquirer
The continuing demand for works of art and other cultural property and their rapid
price rise on the market have made the black market trade in cultural property an
extremely lucrative business.5 9 If it were not possible to sell stolen or smuggled
cultural property, the business would become less lucrative and the incentive for
further illegal transactions would dwindle. Thus, in the interest of the most effective
protection of cultural property possible, there should be strict requirements of care
with regard to the assessment of the good faith of the acquirer.6 0 Anyone who is
considering purchasing a work of art or an antique of considerable value is under
an obligation make enquiries regarding its provenance and request appropriate
evidence for the legality of its origin. Moreover, he must be certain about the
character of the transferor and his authority to dispose of the property. If doubts
arise or questions remain unanswered, further information must be obtained. This
has already been decided by German courts. Thus, the acquirer of a fraudulently
appropriated third century Cyclades idol who did not make sufficiently detailed
inquiries was not considered to be a good-faith acquirer and, for that reason, was
ordered by the court to return the object to the former possessor pursuant to § 1007
Bilrgerliches Gesetzbuch.6 1 The acquirer in this case had even required the alleged
owner to submit a statutory declaration in lieu of an oath. The courts of intermediate
and final appeal considered this not to be sufficient for a bonafide purchase of
such a valuable work of art. They expressly emphasised that in such a case further
inquiries as to the origin of the acquired object are necessary so that an acquirer
can successfully plead his good faith.6 2 Courts in other countries have emphasised
again and again that an acquirer who does not sufficiently investigate the origin of
58
59
60
61
For an overview on this point, cf. Mtiller-Katzenburg loc. cit. (suprafootnote 1), pp. 167 et
seq. and 333 et seq., in particular, 337; see also infra nos. 4. and 5.
On that point, see also supra footnote 6 and accompanying text.
Also even Stoll, 'Sachenrechtliche Fragen des Kulturgilterschutzes in Fallen mit
Auslandsberithrung', in: Dolzer/Jayme/MuBgnug (Editors),Rechtsfragen des internationalen
Kulturgilterschutzes, Symposium vom 22.-23. June 1990 in Heidelberg, Heidelberg 1994,
pp. 53, 64; Siehr loc. cit. (supra footnote 55), p. 67; see also Hanisch,
'Internationalprivatrechtliche Fragen im Kunsthandel', FS Mtiller-Freienfels, Baden-Baden
1986, p. 193, 224.
Decision of the Oberlandesgericht (OLG) Munich of 10 January 1971, Warn 1973 No. 3. A
similarly high standard of care was imposed on a dealer by the English High Court in De
Prival v. Adrian Alan Ltd (1997) unreported, 31 January, noted by Redmond-Cooper in
(1997) ArtAntiquity and Law, p. 55.
62
OLG Munich (previous footnote), p. 9.
1 17
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the cultural property to be acquired and the status of the transferor violates his
duties of care.63
The existence of a duty adequately to investigate, at least with regard to art
trade professionals, is also confirmed by the self-imposed acquisition codes of
museums and art dealers. These generally contain, in addition to a prohibition on
the acquisition of stolen or illegally exported cultural property, an obligation to make
appropriate inquiries.'
Customs of the trade as well as the personal situation of the acquirer cannot
weaken, but can definitely sharpen the objective criteria by which the care due in
transactions is to be measured.6 5 In addition, the acquisition of valuable objects
and, in particular, the acquisition of works of art constitute the sort of high risk
transaction in which a duty to investigate is accepted, even by those who would
wish such an obligation to be the only exception. 66 For the art trade, this amounts
to a certain restriction on the security of transacting. However, this is reasonable
since, for one thing, dealers, museums and private collectors already have numerous
sources of information available so that information can be obtained with relatively
little effort. 67 For another, the existence of a legal duty to investigate can act as an
incentive to close the gaps in the existing information system and to arrange for a
long overdue comprehensive coordination of national and international
documentation agencies .68
63
64
65
66
67
68
Cf. only Pretore di Milano of 27 March 1987 (unpublished decision, reported by Lo Monaco,
Sulla Restituzione di Beni Culturali Rubati all' Estero Secondo la Convenzione dell' UNESCO,
71 Riv. dir. int. 1988, 857).
For more details on the self-imposed acquisition codes of museums and the art trade, see
Mtiller-Katzenburg loc. cit. (supra footnote 1), pp. 196 et seq. and 316 et seq.
Palandt-Bassenge, 58th Edition (1999), § 932 no. 10.
MtiKo-Quack, 3rd Edition (1997), § 932 no. 45 et seq., especially 48.
An example is the service of the Art Loss Register (ALR), which now has an office in
Germany as well (at the Bundesverband Deutscher Galerien e. V. Association of German
Galleries, BVDG in Cologne). There are also possibilities for research at, for example, the
Koordinierungsstelle der Lander fir die Rtickfithrung von Kulturgtitern (Coordinating Agency
of the States for the Return of Cultural Goods), also reachable via the Internet: http://
www.beutekunst.de.
Pinkerton, 'Due Diligence in Fine Art Transactions', 22 J. Int'l L. 1, 18 (1990) points out
that, since the decisions in Porterv. Wertz, 416 N.Y.S. 2d 254 (Sup. Ct., App. Div. 1979),
aff'd on other grounds 421 N.E. 2d 500 (1981) and Taborsky v. Maroney, unreported decision
of the U.S. Court of Appeals (7th Cir. 1984) reprinted by Morryman/Elsen, Law Ethics and
the Visual Arts, Vol. II, 2nd edn. Philadelphia 1987, p. 493, in which the court in each case
assumed a duty to investigate or accused the defendant-acquirer of a lack of good faith, New
York art dealers have become much more active in co-operating with the International
Foundation for Art Research (IFAR) to examine the origin of an object and the possibility of
its having been stolen.
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POSSESSION AND OWNERSHIP OF STOLEN OR OTHERWISE LOST WORKS OF ART
4.
Equitable Estoppel by Laches
The legal institution of equitable estoppel by laches plays almost no role in German
law in the present context at least de lege lata.9 However, that is, to some extent,
different in other jurisdictions. In the United States in particular, courts often apply
equitable considerations when confronted with restitution claims for lost or stolen
works of art. Relevant examples for this are, for instance, the cases of O'Keefe v.
71
Snyder7 0 and De Weerth v. Baldinger.
In the first case, the artist Georgia
O'Keefe sued for the return of three small paintings which had been stolen from
her in 1946. The other case concerned the action for the restitution of a painting by
Monet which Gerda DeWeerth had lost towards the end of World War II or shortly
thereafter and which had been discovered by her nephew Peter von der Heydt in
1981 in a list of works published in 1974. In both cases, the decisive issue was
whether or not the respective plaintiffs had been sufficiently diligent in their attempt
to search for and recover their property.72
It should be mentioned in this context that a legislative proposal is currently
being discussed in New York which would shorten the period of limitation with regard
to the claim of an owner for the restitution of a stolen work of art if the victimised
owner does not publicise the theft sufficiently, in particular, if the owner does not
submit a 'theft report' to a 'computerised cultural objects registry' .7' The introduction
of similar considerations into German law does not seem inappropriate since it is
unacceptable that the good-faith acquirer of a valuable painting who has made all
possible efforts to clarify the unobjectionable origin of his acquired object might be
required by the original owner or his heirs to return the object without compensation,
even if they made no effort to publicise the theft (e.g., by an appropriate registration
with the Art Loss Register 74 ). Here, the interest in protecting the transaction should
receive more adequate consideration.
69
70
71
72
73
74
Only in very rare cases can a plea of equitable estoppel be used to counter the assertion of
rights in rem, cf. on this point Staudinger-Schmidt, 13th Edition (1995), § 242 no. 516 et seq.,
especially 616 et seq., 1538 with further references.
405 A.2d 840 (Super.Ct., App.Div. 1979), cert. granted N.J. 408 A.2d 800 (1979), rev'd and
remanded N.J. 416 A.2d 862 (S.Ct. 1980).
658 F.Supp 688 (S.D.N.Y. 1987), rev'd 836 F.2d 103 (2nd Cir. C.A. 1987), cert. den. 108 S.Ct.
2823 (1988); 804 F.Supp. 539 (S.D.N.Y. 1992), rev'd 24 F.3d 416 (2nd Cir. C.A. 1994), reh'g
granted 39 F.3d 1266 (2ndCir. C.A. 1994).
There was no final court decision in O'Keefe because the parties terminated the litigation
with an out-of-court settlement. InDe Weerth, the complaint was dismissed. For more details
on both cases, see Miller-Katzenburg loc. cit. (suprafootnote 1), pp. 165 and 168 et seq. as
well as 172 et seq.
Cf. on this legislative initiative Miller-Katzenburg, 'Wer das Register fragt, darf fortan
ruhiger schlafen,' Die Welt, 9 January 1998, p. 10; for criticism of the proposed legislation:
see Kline, 'New York State Law Initiative (Part I)', Spoils of War No. 6/Feb. 1999, p. 11 and
Goldenberg, 'New York State Law Initiative (Part II)', ibid., p. 12.
Private persons can register looted works of art with the ALR at no charge (appropriate
forms can be requested by mail or via the Internet at www.artloss.com), and other stolen
works of art for a small fee. The catalogues of the major auction houses are automatically
examined by the ALR before auctions for objects which have been registered as stolen;
moreover, individual inquiries can be made; regarding the service of the ALR, see supra
footnote 65 and the accompanying test.
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Statute of Limitations
The question of limitation of actions is also dealt with very differently in the various
jurisdictions. In Switzerland, for example, the ownership claim for restitution does not
become statute-barred at all.7 5 In Germany, on the other hand, according to prevailing
opinion, the ownership claim for restitution is subject, in the case of movable property,76
to the general period of limitation of 30 years pursuant to § 195 of the German Civil
Code.77 According to § 198 BGB, the period starts to run from the time the claim
arises, thus, in the case of a claim for restitution of stolen property, from the date of the
theft. This is different in various jurisdictions of the United States, which have 'flexible'
periods of limitations which are relatively short,78 but which generally do not start to run
until the owner discovers or, by exercise of reasonable diligence, should have discovered
the whereabouts of his work of art, including the identity and location of its current
possessor.7 9 Therefore, it can happen that a claim for restitution of a stolen or otherwise
lost work of art can still be successfully brought before a court in the United States
although 30 or 40 or even more years have passed since the theft or loss of the object.so
An important recent decision on the law concerning the statute of limitations,
which, in the opinion of many, could have far-reaching consequences for the art trade,
is the 1998 decision of the English High Court, in the case of City of Gotha/Federal
Republic of Germany v. Sotheby's and Cobert Finance S.A."
75
76
77
78
79
80
81
Cf. decision of the Swiss Bundesgericht (BG) of 15 February 1922, BGE 4811, 38,46 f.; see
also Ziircher Kommentar-HombergerZGB (1938), article 936 no. 4 andBerner KommentarStark, ZGB, 2nd Edition (1984), article 936 no. 16, each with further citations.
The inapplicability of the statutory limitation period in relation to claims of property
owners entered in the land register follows from the express rule of § 902 I sent. 1 BGB.
Cf. regarding this completely prevailing opinion in court decisions and commentary only
MtiKo-Medicus, 3rd Edition (1997), § 985 BGB no. 24 with further citations. The ministerial
draft bill on the implementation of Directive No. 93/7 (suprafootnote 3) originally provided
in the case of cultural property under public or church ownership, in addition to other special
arrangements for such specially 'dedicated' cultural property, that the owner's claim for
restitution of such cultural property should not be covered by the statute of limitations, cf.
Trautmann, 'Der Schutz national wertvoller Kulturgtiter - Rechtsakte der EU, das
Abwanderungsschutzgesetz und die beabsichtigte Novelle', lecture at the Cologne conference
on 'Kunst § Recht' on 29-30 September 1998, p. 21.
In those states which are particularly important for the art trade, (New York and California),
the period of limitation is three years, cf N.Y. Civil Practice Law & Rules § 214 (3) and Cal.
Civil Procedure Code § 338.
The so-called 'discovery rule', cf, e.g., O'Keefe v. Snyder (supra footnote 70), Cyprus v.
Goldberg (suprafootnote 49); in New York, the so-called 'demand and refusal rule' applies,
which is similar in result, cf. e.g., Guggenheim Foundationv. Lubell, 143 A.D. 2d 1431, 550
N.Y. S. 2d 618 (15: Dept. 1990), aff'd 569 N.E. 2d 426 (N.Y. 1991), Turkey v. Metropolitan
Museum ofArt, 762 E Supp. 44 (S.D.N.Y. 1990) and, for more detail on both rules of equity,
Mtiller-Katzenburg loc. cit. (supra footnote 1, pp. 170 et seq., pp. 339 et seq. and, more
recently, Kaye, 'The Statute of Limitations in Art Recovery Cases: An Overview', Vol. I, 3
IFAR Journal 22 et seq. (1998).
Cf., e.g., US v. Herce, 334 E Supp. 111 (S.D.N.Y. 1971), which concerned the ownership
rights in a painting by El Greco which disappeared in Spain at the beginning of the Spanish
Civil War in 1936 and did not reappear until 1971 in the United States
(1998) unreported, 9 September, Q.B.D., Case No. 1993 C. 3428 and Case No. 1997 G 185 see
supra footnote 2 and accompanying text. The full text of the decision can be found in N.E. Palmer,
Museums and the Holocaust, Appendix IV (2000, Institute of Art and Law).
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POSSESSION AND OWNERSHIP OF STOLEN OR OTHERWISE LOST WORKS OF ART
In this case, the defendants had pleaded the statute of limitations. However,
the English judge, applying German law, which, according to the situs rule, was
decisive for the question of ownership, reached the conclusion that the claim of the
Federal Republic, as the owner, for restitution was not yet statute-barred because,
according to the unfortunately often overlooked8 2 norm of § 221 BGB, the period
of limitations with regard to the matter in dispute, the painting, had begun to run
anew upon the fraudulent appropriation of the painting in January 1987.83 According
to § 221 BGB, the period of limitation which runs during the time of possession of
the predecessor in right benefits the legal successor only if he has come into possession
of the property by means of succession in title, i.e. by derivative acquisition.
Another interesting fact about the case, an almost delicate one, is that, of all
parties, the Federal Republic as plaintiff argued among other things that, if the
court found the claim for restitution was already statute-barred under German law,
German law should not be applied because it violates English public policy.84
The High Court, (having held that the claim was not time-barred under German
law), went on to consider this public policy argument. Moses J. concluded that
English law prevents the application of a foreign limitation period where this foreign
limitation period would violate English public policy.
It does seem to me possible to identify . . a public policy in England that time
is not to run either in favour of the thief nor in favour of any transferee who
is not a purchaser in good faith. The law favours the true owner of property
which has been stolen, however long the period which has elapsed since the
original theft... To permit a party which admits it has not acted in good faith
to retain the advantage of lapse of time during which the plaintiffs had no
knowledge of the whereabouts of the painting and no possibility of
recovering it, is, in my judgment, contrary to public policy ...s
It is submitted that the time has now come for a reconsideration of the prevailing
opinion relating to the time bar for claims for restitution under § 985 BGB: this
view is supported by the carefully drafted dicta in the Gotha case and the explicit
admission of the Federal Republic that the German statute of limitations depending
how it is interpreted violates important principles of other 'civilised' jurisdictions.
Even as far back as the legislative debate preceding the passage of the German
Civil Code, the question of claims based on in rem rights becoming statute-barred
was contentious.8 6 As the legislative records show, there was;
83
Cf., e.g., the decision of the Munich Regional Court in the Paul Klee case (suprafootnote 13),
in which the period in which the painting in dispute was located in Switzerland, where an in
rem claim for restitution does not become statute-barred, should not have been counted
against the time of possession under § 221 BGB.
City of Gotha loc. cit. (supra footnote 81), p. 88.
84
Ibid., p. 89.
85
Ibid., p. 97; the court continues: "To allow Cobert to succeed, when, on its own admission it
knew or suspected that the painting might be stolen or that there was something wrong with
the transaction or acted in a manner in which an honest man would not, does touch the
conscious of the court."
Mugdan (Ed.), Die gesamten Materialienzum BGB, Vol. I. (EGBGB and AT), Berlin 1899,
pp. 771 et seq.
82
86
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VOL. 5,
ISSUE 2
ART ANTIQUITY AND LAW
JUNE 2000
A repeated reference to the apparent relative relationship which can arise if
the in rem right becomes invalid vis-h-vis the party which brought about and
maintains the same offensive condition; the property, as long as it is held by the
thief protected by the bar to restitution under the statute of limitations, is devoid of
substance, but it regains full validity if it is lost by the thief.8 7
Indeed, still today, it is viewed as grotesque" that the right of ownership as
such does not become statute-barred,8 9 but the ownership claim for restitution
does, so that, once it becomes statute-barred, ajus nudum, a right devoid of content
develops. This could induce the owner to take his property from the possessor by
force. The realisation of the possessory claim for return to possession would then
establish a new possession of the possessor and, according to generally accepted
principles, permit a new period of limitation to start to run.
In the legislative debate on the German Civil Code, it was thus decided to
reserve the question "whether it is called for or appears to be reasonable to limit the
case of a dominium sine re, which is possible according to the draft legislation, for
the debate on property law".90 However, it apparently never came to this later on.
There is another argument against a bar under the statute of limitations, in
any case, to the claim for restitution against the thief or an acquirer in bad faith: It
is acknowledged that a party may not plead the statute of limitations where he has,
by his own conduct, prevented the plaintiff from bringing his action within the
limitation period: this is viewed as an abuse of the law.91 This is the case where,
for example, the debtor by his actions has kept the creditor from filing an action.9 2
An unintended hindrance can be sufficient.93 Thus, in my view, the plea of abuse
of law must be effective against both the thief and a bad-faith acquirer, especially
because the latter will hardly reveal his possession and the owner is thereby put in
the position where it is impossible to assert his claim for restitution. Otherwise,
especially with regard to the assets involved in the art trade, the legal institution of
the statute of limitations offers an additional incentive for abuse because, where a
valuable object is concerned, even a thirty-year 'storage period' can pay off
financially.
Moreover, it should be pointed out that, even if the bar under the statute of
limitations to the claim for restitution under to § 985 BGB is assumed, the owner,
who still retains his absolute right as owner, 94 can possibly assert other claims
against the possessor. Of special interest in this regard is probably, above all, the
87
88
89
90
91
92
93
94
Ibid., p. 771.
MUller, Sachenrecht, 4 th Edition 1997, no. 455, who, for that reason, opposes the prevailing
opinion and pleads for the incapacity of the claim for restitution to become statute-barred; cf.
also Henckel, 'Vorbeugender Rechtsschutz im Zivilrecht', AcP 174, 97, 130 as well as
Staudinger-Gursky, 13th Edition (1993), § 985 BGB no. 70.
Cf. only Staudinger-Gursky loc. cit. (previous footnote).
See the records regarding AT loc. cit. (suprafootnote 86), p. 772.
Cf., e.g., MtiKo - Von Feldmann, 3rdEdition (1993), § 194 no. 11.
Established case law, cf. only Bundesgerichtshof of 28 November 1984, BGHZ 93, 64, 66
and 1 October 1987, NJW 1988, 265, 266.
MtiKo-von Feldmann loc. cit. (suprafootnote 91) with further citations.
See supra footnote 88 and accompanying text.
122
POSSESSION AND OWNERSHIP OF STOLEN OR OTHERWISE LOST WORKS OF ART
generally overlooked9 5 claim based on unjust enrichment under § 816 para. 1 sent.
1 BGB. According to that provision, the owner from whom a work of art has been
stolen can even where his claim has been time-barred under § 985 BGB demand
that the possessor surrender the proceeds if he validly sells the property whose
recovery is sought.
III.
SUMMARY AND CONCLUSIONS
The various types of art theft cannot all be lumped together. At the same time, they
do display common characteristics which in some cases justify similar or analogous
treatment. In many cases, above all, a reasonable balancing of interests between
protection of the owner and protection of the transaction must be created. However,
the special nature of the objects involved should not be overlooked: Works of art
(apart from multiples and reprints) are unique and thus irreplaceable. Thus, in the
interest of all of us, they require special protection. However, the actual and financial
possibilities for protection of valuable works of art against, above all, theft and
looting, are limited. An effective means for lasting improvement of this protection
is to rob the illegal art trade of its lucrative nature. To this end, national and
international property law offer suitable starting points.
95
On this point, however, see Plambeck, Die Verjdhrung der Vindikation (Diss. 1996), Frankfurt
am Main 1997, pp. 215 et seq., 226.
123