What happens if you accidentally purchase a stolen artwork or artefact? - Boodle Hatfield

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02 Nov 2023

What happens if you accidentally purchase a stolen artwork or artefact?

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Simon Fitzpatrick View profile
4 min read

There has been a lot of media interest in the topic of stolen art and artefacts in recent months and figures from the Art Loss Register show that 65,000 items are currently missing from museums around the world. But what is the position for those who inadvertently end up purchasing stolen artefacts and artworks? And what about for the original owner, if their stolen item is sold on?

What is the legal position?

The starting position under English law is that a purchaser will not acquire a better title to the artefact or artwork than the seller himself had.

So if someone steals, for example, an ancient manuscript, and then proceeds to sell it, the purchaser would not obtain good title to that manuscript (because the seller never had title to it himself - and you can't sell something you don't have).

This would in reality lead to a situation where the manuscript should be returned to the rightful owner (who it was stolen from), and the purchaser would be left to seek to recover their money from the person who sold the item to them.

 

There are exceptions to this, the most common of which is due to the operation of the Limitation Act 1980, which means that over time certain purchasers of stolen goods can acquire good title (i.e. be recognised legally as the owner of that item). Broadly speaking, this is engaged when:

There is a purchase 'unconnected to the theft' (i.e. somebody purchases the item in good faith, without knowledge of the theft); and

More than six years passes following that purchase

Where does this leave the purchaser?

Save for some exceptions, such as the one outlined above, a purchaser will generally be left in a position where he / she may be required to return of the artwork / artefact (or damages to the value of the item) to the original owner. He / she will then need to look to recover the purchase price from the seller.

Of course in reality the seller may not be the original 'bad faith' party. There are often a number of good faith 'hands' through which the stolen item has passed, before reaching the current purchaser. From the purchaser's perspective, however, they will only have a contractual relationship with the person who sold that item to them, and they may now find themselves significantly out of pocket, having paid the seller a sum for an item they are unlikely to be able to hold on to (or sell).

The purchaser's first step should be to seek advice to confirm the position regarding who legally owns (i.e. holds title to) the artwork / artefact. For example, it may be that (due to the six year limitation period) the original owner's title to the item has been extinguished (and if so they will not be able to seek the return of the item from the purchaser)

Where a purchaser finds that the original owner does indeed still have title to the item (and is entitled to recover it), they should notify the seller from which they purchased the item. There may be a sale contract, or terms and conditions, which may make provisions to allow the purchaser to claim a refund. Alternatively, as a matter of goodwill, the seller may agree to refund the item and take the matter up with the person from whom he / she acquired it.

If the seller is unwilling to refund the item, the purchaser should then seek legal advice in regard to any claim they may have against that seller.

Where does this leave the original owner?

  • Scenario 1: Original owner retains title (i.e. there has not yet been a purchase 'unconnected to the theft', or the 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 / artwork 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 artwork / 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).
  • Scenario 2: Original owner does not retain 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 artwork / artefact.

Buyers should do their due diligence before acquiring any item which could potentially have been stolen. The higher the value of the item, the more rigorous a buyer should be. A secure and fully documented provenance and full explanation about the origins of the item 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.

The law in this area is complex and exceptions to the above rules apply. The above is intended to be a summary of the main principles only and does not constitute legal advice.

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