Unravelling the legal complexities of stolen artefacts - Boodle Hatfield

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13 Sep 2023

Unravelling the legal complexities of stolen artefacts

Recent figures from the Art Loss Register show that 65,000 items are currently missing from museums around the world. For centuries ancient artefacts, art and relics have been a topic of ownership, provenance, and morality debate. But what is the position today for those who have inadvertently purchased stolen artefacts from a museum’s collection? And where does an original owner stand if their stolen items are sold on?

If a stolen artefact is sold on, who actually owns it?

Once a thief proceeds to sell on a stolen artefact, there is a general rule that whoever purchases the item will not, no matter the purchase price or the terms of the sale, acquire legal ownership (good ‘title’) to that item.

This is because the thief never had ‘title’ themselves – and you can’t sell something you don’t have. The original owner can take steps to require the purchaser to return the artefact (or damages to the value of that artefact) to them.

As with all things, however, there are exceptions to this rule. The most common exception relates to the Limitation Act 1980, which means that over time certain purchasers of stolen goods can be recognised legally as the owner. Broadly speaking, this is engaged when:

  1. There is a purchase ‘unconnected to the theft’ (i.e. somebody purchases the item in good faith, without knowledge of the theft); and
  2. More than six years passes following that purchase.

The position for the purchaser

Purchasers of any artefacts which transpire to be one of the many items stolen from the many worldwide Museums will not, generally speaking, be regarded as the legal owner. They should take steps to return the artefact. Otherwise, they may soon face allegations of handling stolen goods, and/or a legal claim against them for recovery of the item, or damages to value of it.

Of course, it will not always be clear where the artefact has come from, particularly when sites such as eBay can offer little to no accompanying paperwork. During the recovery efforts, purchasers who transpire to inadvertently hold artefacts still legally owned by a museum will be in the unenviable position of having paid a sum of money for an item they will be unable to able to hold on to or sell. Their recourse will be to look to the person they bought the item from, to pursue reimbursement of the sum paid.

Of course, in reality, that seller may not be the original wrong-doer; the item may have already passed through a number of good faith ‘hands’, before reaching the current purchaser. From the purchaser’s perspective, they will only have a contractual relationship with, and so will only be able to pursue, the person who sold them the item. The terms of any sale contract, or terms and conditions, should be checked. Legislation such as the Sale of Goods Act 1979 and Consumer Rights Act 2015, which imply conditions into a sale that the seller has the right to sell the item may also assist.

From the seller’s point of view – if they are not the original wrong-doer who stole the item – they will then need to look to pursue reimbursement from the person who sold them the item, and so on.  Difficult instances can arise where a seller refuses to voluntarily reimburse a purchaser who finds themselves out of pocket. Depending on the circumstances and, in particular, the sums of money at stake, the purchaser will need to consider pursuing legal channels in order to take more formal steps to recover their funds.

The position for the original owner

Subject to who holds title to the goods, there are two scenarios the original owner will be faced with.

  • One scenario is when the original owner retains the title (i.e. there has not yet been a purchase ‘unconnected to the theft’, and a six-year period following the ‘unconnected purchase’ has not yet expired).In these circumstances the original owner can seek to assert their title and recover the artefact from whoever now holds it. This is done though a claim for ‘conversion’. This should be done as quickly as possible. The original owner will also have a claim against the thief (for damages to the value of the artefact). However, for obvious reasons it is usually preferable to pursue the current holder for the return of the item, rather than pursuing the thief for a sum of money (in circumstances where you are unlikely know the identity of the thief and / or whether they will comply with any Court order).
  • A second scenario is where the original owner does not retain the title (i.e. there has been a purchase ‘unconnected to the theft’, and the six-year period following the ‘unconnected purchase’ has expired).The original owner will no longer be able to pursue the current owner of the item. However, they will still be able to bring a claim against the thief for damages equal to the value of the artefact.

The learnings

Buyers should do their due diligence before acquiring any ancient artefacts, artworks or relics. The higher the value of the item, the more rigorous a purchaser should be. A strong provenance is critical and buyers should not accept vague explanations or undocumented accounts. A lack of paperwork, particularly for high value items, should ring alarm bells.

This article was first published in ArtsProfessional in September 2023.