In the art magazine stayinart (issue 3/19), lawyer Georg Huber deals with the question of whether and how stolen works of art can become the possession of a buyer having puchased them in good faith or whether they have to be returned to the owner they were stolen from.
He illustrates the subject using two examples, each with a different result. One example involves two stolen Dürer paintings that were brought to New York, the other concerns two stolen painting by the painter Purrmann that remained in Germany.
To New York and Back – The Acquisitive Prescription of Stolen Works of Art
Almost exactly 50 years ago, on January 27, 1969, the Federal Republic of Germany brought an action before the US District Court in New York against the lawyer and art collector Edward I. Elicofon for the restitution of two paintings by Albrecht Dürer, namely portraits of the merchant couple Hans and Felicitas Tucher. The paintings originally belonged to the Weimar State Art Collection and were kept in a castle in Thuringia during the Second World War , the Schwarzburg, from where they were presumably stolen. The Weimar Art Collection and the Hereditary Grand Duchess of Saxony-Weimar-Eisenach later joined the proceedings for the restitution of the paintings.
Mr. Elicofon had bought the pictures in good faith in 1946 from a returned US soldier for 450 US$, without knowing their actual value or that they had been stolen. The soldier claimed to have bought them in Germany from a third party. During the trial, it turned out that he had bought them from an architect named Fassbender. This architect was commissioned at the time to transform Schwarzburg into a summer residence for Hitler.
Mr. Elicofon hung the pictures up at his home in Brooklyn. Only in May 1966, 20 years after he had bought them, did the true identity of the pictures come to light. A friend of Mr. Elicofon recognized the paintings as Dürer paintings he had seen in a catalogue of lost works of art. The discovery was reported on the front page of the New York Times on May 30, 1966 as “The Art Discovery of the 20th Century”. The value of the paintings was estimated at around 23 million deutschmarks at the time.
The trial in New York went on for 13 years. Essentially the question was whether Mr. Elicofon had acquired ownership of the two stolen Dürer paintings or not. If he had acquired ownership, he would be allowed to keep the paintings. Otherwise he would have to return them. The court finally ruled in 1982 that Mr. Elicofon did not own the paintings and therefore had to return them. Since then they have been on display in the Weimar Castle Museum.
37 years later, in July 2019, the German Federal Supreme Court (BGH) had to decide a similar case. But the result was different. In 2009, a car parts wholesaler without any particular knowledge of art wanted to have two pictures sold at an auction house in Lucerne. The auction house identified the pictures as two stolen works by the painter Hans Purrmann, who died in 1966, namely the paintings “Frau im Sessel” dated 1924 and “Blumenstrauß” dated 1939.
These paintings, among others, had been stolen from the painter’s daughter’s house in a burglary in 1986. The car parts wholesaler had received the paintings as a gift from his stepfather in 1986 or ’87. His stepfather had purchased them from an antique dealer. The rightful heir, a grandson of the painter Hans Purrmann, sued the car parts wholesaler for restitution of the pictures before the Ansbach Regional Court in Germany. The case went through all instances up to the Federal Supreme Court.
The Supreme Court decided that the car parts wholesaler did not have to hand over the pictures to the heir (the painter’s grandson), but had become the owner of the pictures as a result of a bona fide purchase.
But why do the New York Court and the German Federal Supreme Court come to different conclusions in similar situations? In both cases, pictures were stolen in Germany and sold to bona fide third parties – Mr. Elicofon and the car parts wholesaler’s father-in-law. But in one case the pictures had to be returned, in the other they didn’t. The reason is that the New York court applied US law and the German Court applied German law.
Basically, the question of acquiring ownership of stolen property is about achieving a balance of interests. On the one hand the interest in restitution of the party the property was stolen from, on the other hand the interest of the bona fide purchaser in legal certainty that purchase contracts are valid. The latter is recognised in some legal systems by the fact that after a certain period of time, usually several years, stolen goods may become possesions by acquisitive prescription. Moreover, in some countries, such as Austria, a buyer even acquires ownership of stolen works of art if he acquires them either at a public auction or from an entrepreneur in the ordinary course of his business (e.g. a gallery owner).
Under US law, however, the ownership of stolen works by acquisitive prescription it is not possible, even if the purchase was made in good faith. Therefore, Mr. Elicofon was not able to claim ownership of the Dürer paintings and had to return them to the rightful owner.
According to German (and also Austrian) law, however, acquisitive prescription and thus the acquisition of the property right after a certain period of time is possible if the purchaser acted in good faith during the purchase. Therefore, the car parts wholesaler was allowed to keep the pictures by the painter Purrmann.
In such cases the question often arises as to whether the purchaser really acted in good faith, i.e. whether he shouldn’t have at least suspected, on the basis of the circumstances of the purchase, that the goods were possibly stolen.
With regard to the question of good faith, in the above mentioned judgment the Federal Supreme Court stated that a layman – such as the father-in-law of the car parts wholesaler – has no general duty to investigate a purchase. Without any further indications he does not have to investigate whether a work of art has possibly been stolen. However, this does not apply if there are circumstances that give rise to suspicion.
The two court cases show that the question of which law is applied – here for example US law or German law – can be decisive in determining whether the ownership of stolen works of art has been acquired through acquisitive prescription or not. In the case of Weimar v. Elicofon, this was not clear from the outset, since the painting was stolen in Germany and the soldier had bought the painting from the architect in Germany. Mr. Elicofon, however, was unsuccessful in invoking German law at the trial. The New York Court ultimately applied the law of the country in which the two Dürer paintings were located at the time the trial began and also denied that the soldier had acquired ownership in Germany.
Since in many cases works of art are easy to transport and are often sold abroad, the question of acquisitive prescription becomes a question of where the work of art is ultimately located or purchased.
For works of art that fall under the Cultural Property Restitution Act, the peculiarity is that the law of the country of restitution always applies and special restitution rights exist. The (Austrian) Cultural Restitution Act regulates the restitution of cultural objects in the possession of the Federal Government which were either confiscated from their owners during the National Socialist era or were surrendered to the Federal Government after 1945 in “consideration” for the granting of export licences for other works of art. The most prominent case of cultural restitution is probably Klimt’s “Golden Adele”.
 Kunstsammlungen zu Weimar v. Elicofon, 678 F.2d 1150 (2d Cir. 1982); siehe auch https://plone.unige.ch/art-adr/cases-affaires/2-durer-paintings-2013-kunstsammlungen-zu-weimar-v-elicofon
 Urteil vom 19. Juli 2019 – V ZR 255/17; Pressemitteilung des BGH Nr. 097/2019 vom 19.07.2019; siehe auch https://www.faz.net/einspruch/bgh-zur-ersitzung-der-kampf-um-gestohlene-kunst-16296213.html
 Siehe dazu Georg Huber, „Die Goldene Adele“, Kaleidoscope 3.17, und https://www.lawfirm.at/news/restitution-von-kunstwerken