I am in the final days of writing as essay entitled –‘The case for repatriating the Parthenon Marbles [‘PM’] using a trust’, for the Diploma in Art Law course I am undertaking at the Institute of Art & Law in London (https://ial.uk.com/).
An original argument which occurred to me this morning as I was writing about the legal merits of the claim by Greece [‘G’] for the repatriation of the PM runs as follows:
·     If the PM were/are ‘fixtures’, then they are not chattels.
·     Thus, the remedy of conversion in Tort is not available to G.
·     Axiomatically the Limitation Act 1980 provisions applicable to claims in conversion do not apply.
·   G may be able to make a novel application to a court of equity for: (i) a declaration about the existence of a ‘Constructive Trust’; and (ii) for the recovery of trust property in the possession of the British Museum [‘BM’], which has been converted into their use.
·     There is no limitation period for such an application.
·     Therefore G is not out of time for bringing a claim in the Chancery Division of the Business & Property Courts in London.
·     The Limitation Act 1980, s.21 provides:
‘Time limit for actions in respect of trust property.
(1) No period of limitation prescribed by this Act shall apply to
an action by a beneficiary under a trust, being an action—
(a) in respect of any fraud or fraudulent breach of trust to
which the trustee was a party or privy; or
(b) to recover from the trustee trust property or the proceeds of
trust property in the possession of the trustee, or previously received by the
trustee and converted to his use.’
·  The definitive legal pronouncement of what is a fixture is found in Berkley v. Poulett [1977] EGLR 86. Whether an article or chattel is a fixture, depends upon:
(i)                 the degree to which the article in question could properly be said to be annexed to the building; and
(ii)                the purpose for which it was put there.
·       While this will need to be researched, the fact that the PM were unlawfully removed, cannot and does not, convert them into chattels – not least, because logically, they belong as part of the Monument from which they were taken – which if the Monument had been sited in England, would mandate their return and re-unification. As far as I am aware, nobody has ever advanced and developed this novel legal theory – not even the Government of Greece.