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THE PURCHASE OF A WORK OF STOLEN ORIGIN

I recently had to advise a client on the purchase of a work of art of distant stealthy provenance: it was a painting stolen from a patrician residence and then resold by the thief to an antiques dealer.

The customer asked me whether there was any risk of having to return the work to the person from whom it had been stolen; in fact, it is evident, even to a layman, how a stolen work of art can expose the unwary buyer to losing the purchased good (perhaps even at a high price) and even to having to defend himself against charges of receiving stolen goods.

The analysis of the case, which obviously presents a series of concrete issues that I will not report, also to protect the confidentiality of the matter, has therefore given me the cue to revisit with this short article the issues related to the domestic and international circulation of stolen works of art.

Obviously, the subject is very complex and deserves to be examined in depth for each individual case; however, I propose to provide brief food for thought and due diligence to deal with similar cases, excluding from the analysis any profiles of criminal relevance.


INTERNAL CIRCULATION

First of all, it is necessary to address the case in which the stolen goods have an Italian provenance and are then marketed domestically.

In this case, in fact, the applicable legislation is that established by the Italian civil code which, as is well known, in Article 1153 of the Italian Civil Code protects the purchase in good faith by a person who is not the actual owner (as opposed to other legal systems, e.g. the English one, which do not allow the transfer of ownership regardless of the purchaser's good faith).

In fact, the issue is not entirely straightforward even in the light of our legal system (contrary to what one sometimes hears), since our jurisprudence appears rather restrictive in recognising the purchaser's good faith.

In fact, in the well-known case of De Chirico's "still life with fish", the Court of Cassation had occasion to specify that good faith is not equivalent to mere ignorance of the impairment of another person's right, but it is necessary that such ignorance was not due to gross negligence, given by the buyer's omission of that minimum level of diligence that would have allowed him to perceive the existence of a problem (Civil cassation, section II, 14 September 1999, no. 9782).

Therefore, it remains important also in the context of national circulation to respect due diligence with reference to ascertaining the lawfulness of the origin of the work.

For this reason, I consider it important to recommend consulting the databases of the Carabinieri, INTERPOL, ARTLOSS or other suitably chosen ones.

Likewise, I would advise against the purchase by anyone who cannot document the provenance of the work or his title of ownership, especially if he is not active in the sector (i.e. not a collector known to the buyer or an art dealer).

It must be borne in mind, however, that the requirement of good faith is often calibrated to the figure of the buyer and, therefore, it is even more important to turn to one's own advisor to submit to him the examination of the specific circumstance (in the case of De Chirico, in fact, the qualification of expert gallerist has tightened the jurisprudential meshes, ending up not recognising good faith even in the case of purchase at public auction).

Obviously, this problem does not arise when the prerequisites for usucapion have matured; in this case, in fact, the seller has become the owner of the work in its original title, even in the case of previous theft. I must, however, warn of the evidentiary burdens that will be placed on those who invoke the acquisition of the right of ownership by usucapion.

Lastly, I would like to point out that a very recent judgment clarified that the return of a stolen work by its legitimate owner does not concern the protection of possession, but rather the right of ownership, which, therefore, will have to be proven by the person claiming it.


INTERNATIONAL CIRCULATION

In the case of stolen works of art exported abroad (even in a lawful manner, as we shall shortly see) certain rules of international law, well known to operators in the sector, apply.

First and foremost, also in a chronological sense, is the 1970 UNESCO Convention, which was followed by the 1995 UNIDROIT Convention, while for the territory of the European Union Directive 2014/60 (which replaced the former Directive 93/7) is in force.

The rules contained in these agreements allow an exception to the discipline of the protection of the bona fide purchaser (which, as I have said, is not unanimously applied in all states).

The intention is, in fact, to avoid that a stolen provenance of a work is somehow regularised through one or more sales made in the territory of a state that protects the bona fide purchaser.

For this reason, the international rules, by derogating from the rule that the law of the place where the sale takes place applies to the contract, consider applicable the law of the place of provenance of the work; this means that a painting stolen in an English castle cannot legitimately pass into the purchaser's ownership even in the case of a sale made in Italy, since the original British owner can also assert in Italy the rules of his country that deny protection to the purchaser in good faith.

On the contrary, a work stolen in Italy and resold to a bona fide purchaser may not be subsequently claimed if it was subsequently lawfully exported; however, the reader's attention is drawn to what has been said above with regard to the prerequisites for the recognition of the purchaser's good faith.

In the event that the work can be claimed, all the international standards mentioned provide, albeit with some differences from each other, for fair compensation in favour of the possessor; However, such compensation is subject to a due diligence check on the purchase ranging from the simple good faith of the UNESCO Convention to the much more demanding demonstration (required by the UNIDROIT Convention and the EU Directives) of having taken into account all the features of the contractual relationship that led to the purchase, such as, for example, the circumstances of time and place, the persons involved, the price paid, access to registers and databases of stolen works of art, and any other appropriate information.

As mentioned above, the discipline enshrined in each convention is differentiated in many respects, but it is not the task of this contribution to address the specifics in detail.

In any event, it is good to know that the application to each case of one rule rather than another is dictated by a plurality of factors and circumstances related to the time, the places affected by the facts and the nations and jurisdictions involved; for this reason, it is important to promptly submit the matter to a legal advisor who will be able to help settle any doubts on the matter.



In conclusion, a work of unclear provenance must be subjected to a very permeating investigation because if it turns out to be of stealthy provenance, the consequences on its international marketing and circulation could be of no small importance (to say nothing of those of a penal nature, which could make the incautious purchase even more unpleasant).

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