‘Art Repatriation Claims Against Museums Based Upon The Tort Of Conversion.’

Under English law, a transferee of goods cannot derive a better title than that of the transferor. If the Claimant [‘C’] can establish a continuing title that is better than the party who dispossessed him, any possessor subsequent to the first party, including a statutory museum e.g. the British Museum, is susceptible to the original possessor’s title. Therefore, if the museum [‘M’] acquired cultural property that was stolen or looted, provided the applicable limitation period has not expired, C prima facie has a valid claim against M in conversion. However, this is subject to the ‘Lex Situs’ rule. Thus, where privately owned cultural property was nationalised prior to acquisition by M from a foreign government (who had nationalised it / a successor government), C has no claim, Princess Paley Olga v. Weiz. That is because when M acquired the object(s) the object(s) were within the foreign government’s jurisdiction. In my submission, the logical corollary of the proposition that ‘disposal restrictions apply to items accessioned to a national museum collection’ [P.1], is the proposition that ‘legal restrictions on deaccessioning can only apply to those items insofar as the national museum holds good title’ [P.2]. Therefore, subject to the availability of a Limitation Act defence, if C can show better title than M, the cultural property in question never became part of the museum’s collection. In other words, any statutory restrictions on deaccession would not apply because lack of title precluded the item(s) from ever having legally become part of M‘s collection. Furthermore, to hold otherwise, would effectively displace the lawful owner in a manner akin to seizure by the state, which is a possible infringement of Article 1, First Protocol of the European Convention on Human Rights. Therefore, if the title of M is inferior to that of C, it should be within M’s power to deaccession the item(s) claimed. See also my evolving essay ‘Deaccessioning Art and Cultural Heritage – The Legal and Ethical Framework’ on the ‘Mediation of Art & Cultural Heritage Disputes’ page at www.carlislam.co.uk