A reader and collector wrote to ATG with a conundrum:
Careful research following his purchase from a recent auction threw up a reported theft of a very similar object with similar details, the theft being in 1971 from a local institution. In his view, there was precious little doubt that the stolen work had now become his auction purchase.
While he felt morally obliged to report the theft to the museum concerned, he wanted to know the position on something apparently stolen over 50 years ago.
The bottom line answer lies in the judgment given in a well-known case on the labyrinthine provisions of the Limitation Act 1980. This topic was covered in ATG No 2529 (‘Buyers beware of later ownership disputes’) and is revisited below.
The case in question – De Preval v Adrian Allen Limited (1997) – involved a well-known dealer who tried to auction two French gilt bronze and enamel candelabra by the 19th century French sculptor Barye. The dealer claimed to have bought them in good faith, relying on what he was told by the seller that he had the right to sell them.
The candelabra were placed into a Sotheby’s auction in 1994. The original owner, Nicole De Preval, then turned up trying to halt the sale and claim back the candelabra.
The whole case turned on the relevant provisions of the Limitation Act which the judge determined meant as follows (italics as per the judgment):
“Once… a bona fide purchaser acquires the chattel, and six years has run from the date of his acquisition, the owner cannot sue a person who acquires the chattel after the date of the bona fide purchaser’s acquisition, even if he is not himself a bona fide purchaser (he may be a purchaser with notice or a volunteer).”
In other words: where a purchaser in good faith of stolen goods is involved, the owner’s title to the goods can be extinguished, and his/ her right to make a claim barred, after six years from the date of the good faith purchase.*
‘Good faith’ is not something necessarily very easy for a purchaser to prove and in De Preval the judge went very carefully through what the purchaser had said in the witness box and concluded that on balance it had not been proven, so that in the final words of her judgment: “The plaintiff therefore succeeds in her claim to have the candelabra delivered up to her.” The dealer, Adrian Allen, had to give up the candelabra.
Time limit debate
It is very arguable, and has been argued, that this six-year time frame allowing a bona fide purchaser to deprive the original owner of ownership is unfair.
To illustrate the point, we can turn to the extraordinary downfall of Michael H Steinhardt, a once eminent collector who had a gallery in the Metropolitan Museum of Art named after him and his wife – the ‘Judy and Michael H Steinhardt Gallery’ – whose story was told in the December 18, 2021, issue of ATG (No 2522).
For dealing in a vast number of looted antiquities, Steinhardt has been barred for life from acquiring antiquities again. Many would say he was lucky not to end up in prison.
It was reported that 180 seized antiquities were looted and illegally smuggled out of their respective countries of origin, thus rendering each of them stolen property under New York criminal law, according to the Statement of Facts issued with the Judgment.
It was also pointed out that some of the forfeited items have relatively long art market histories and that one of them, an Anatolian Terracotta Idol, first surfaced on the international art market in 1975 at a Sotheby’s London auction.
Some of the works will have been sold many times, over decades, to unknowing purchasers who bought entirely innocently.
The 168-page statement of facts issued with the New York judgement concluded that the 180 seized antiquities looted and illegally smuggled out of their respective countries of origin were stolen property under New York criminal law – because under the applicable NY law, a ‘good-faith’ purchase did not render a stolen item legal, nor did it matter how much time has elapsed since the theft. In other words, the true owner can retrieve the stolen item however many years pass, even though an innocent good-faith purchaser has bought the work and decades may have passed since.
Different jurisdictions have varying laws on this point and at times there has been much discussion surrounding the balance between the ‘original owner’ and a subsequent bona fide honest purchaser without notice of the theft. Which one should the law favour? You decide.
Meanwhile, perhaps you have worked out what the collector and ATG reader should do, given the above.
* Museums and other institutions subject to Holocaust art claims operate under a separate regime in the UK, where the Spoliation Advisory Panel considers the legitimacy of claims made under wide criteria. While the panel “will consider legal issues relating to title to the object”, these criteria include, as the guidance expressly states, taking into account “nonlegal obligations, such as the moral strength of the claimant’s case”.
Milton Silverman is senior commercial dispute resolution partner at Streathers Solicitors LLP, London.