posted 10-04-2007 10:34 AM            

I think this may have been asked before ...... Last night over dinner I couldn't recall.

The circumstance: Someone purchases something at an antique or flea market (proper receipts, etc) and after some research it turns out to be very museum desirable. So the buyer finds a proper institution (one who really wants it) to gift the item to and the donor gets the tax benefits. Some years later, once on exhibit, it then turns out that the item may have been stolen some thirty years ago. What happens? Is there a statute of limitations or other protections for the sincerely innocent parties?

At the SSF, I know we have several lurking curators..... maybe they will join this discussion and tell us their thoughts and experiences in such circumstances as well?

Thanks.

posted 10-04-2007 12:51 PM            

It is a general principle that a purchaser (or recipient of a donation) only receives the same title to the item that the prior owner held. Thus, when an item is stolen and then sold, from the point it is sold, that purchaser, and any subsequent purchaser or recipient, does not hold "good title" to the item, and it is subject to conveyance back to the rightful owner. This would apply equally to the scenario involving the estate, since the conveyance of the property was done through probate and if it was not conveyed to the proper designee owner, the person who possessed it and conveyed it did not have good title.

As a more practical matter, the establishment of theft may be difficult, and may be affected by where the theft took place and whether there is still a statute of limitations in effect, as state laws differ in the length and triggering point for the statute of limitations. In New York, the statute of limitations for someone bringing an action for return of stolen property (known as replevin) is 3 years, but that 3 year period is triggered at the moment that the person asks for the return of the stolen item and it is refused. In other states, it may be a straight period of years (i.e. in Massachusetts, it is 6 years), and in others, there may be a triggering point of when the theft was discovered or "should have reasonably been discovered", which leads to additional questions and challenges.

Depending on the item, there may also be federal statutes or international laws that trigger additional issues. These items include things such as Columbian artifacts or even stuffed migratory birds under glass (a long story!).

I have had personal experience with this in a strange way. I had once admired a necklace in a shop where I was friends with the owner, but could not afford it. Over a year later, I was walking past a second hand store and saw a necklace in the window that I thought looked remarkably familiar. The shop owner told me that someone had brought it in and had said it had belonged to his grandfather, who had brought it from China. The price was even higher, so I walked away, but I was pretty sure it was the same necklace.

I went back to my friend the shopkeeper, and being my nosy self, I asked him whether he remembered this particular necklace, and as I did he turned very pale! It had been stolen from his shop not long after I had tried it on. I told him where it was, and he called the police. They seized it and because they had been able to identify the thief (he had come back a second time and the owner had caught him), it was used to extend the thief's current stay in jail.

The happy ending to the story was that I ended up with the necklace! Once it was returned from the police to the store owner, he offered to sell it to me for his cost. I am farily comfortable that I have good title to the piece!

[This message has been edited by doc (edited 10-04-2007).]

posted 10-04-2007 04:56 PM            

Several instances involved someone who did not have clear authority to sell items but was not clearly prevented from selling. One child would remain with mother and father, caring for them to the end. The other siblings would rarely visit and never help with the care. The one at home then hauls a bunch of valuables down to the neighborhood antique shop and sells them. She pockets the money. When the estate is divided, the others ask where is x? She tells them it was sold to pay medical expenses.

This is a situation I have seen many times. And have never had a clear idea of what the ultimate solution is. But I have seen very upset people ranting and raving at some poor dealer who had merchandise they claimed was stolen. Usually the police tell the sibling to buy it back.

But the police can also seize inventory as evidence. Which for a dealer is a nightmare. The merchandise is held for months on end while the courts try to determine if this set of Chantilly is the one stolen. Usually, the dealer gets the set back. But he has to prove that the receipt which reads 'silver $800.00' is the one for the set.

Which leads me to question if there can be proper receipts at a flea market. Antique shows do have better record on this. Speaking strictly hypothetically, dealers with any sense have informal arrangements with other dealers to handle this matter. Should something be questioned, they produce one of the typical garbled and vague receipts as proof of purchase. This is from a friend who will then claim to have bought the items somewhere far away, complete with a 'buncha stuff' receipt. This is how dealers at lower levels handle the problem. So, the curator is protected at that level.

posted 10-04-2007 05:27 PM            

But if there is a report, there must be a description of the item. And that description must match exactly to the item. Usually the description is very poorly done.

In the rare instances where the item is properly described, get a lawyer.

posted 10-04-2007 06:56 PM            

From the other side, however--and let me make this the good old hypothetical "a friend of mine who was a curator"...found out by chance that something had been put up at auction by a former staff member of his museum--something it seemed unlikely a museum staff member would have owned. (It was, hypothetically, a 17th-century Limoges enameled dish.) A quick search of the files found that records for an object like this had been carefully removed--as well as a photograph of the dish in the library. Only by searching microfilm records taken of the original accession cards did this curator find an image of the object that was missing--and it turned out to be the same object put up at a major auction house in a major east coast city. My "friend's" museum notified the auction house of the illegal sale (this was perhaps three or four years after the fact). The Museum then contacted the buyer of the piece, only to learn that the buyer had been tipped off by the auction house and had sold the piece to someone else--and had lost all record of the person to whom it had been sold. Thus the museum, without the legal resources to track this down, simply lost out. I might add that the Museum did no business with this auction house for the next decade.

Sad, but a true story.

posted 10-05-2007 09:07 AM            

I suppose the issue of "good title" exists anytime an antique changes hands. Like real estate title insurance there is now the same sort of thing for paintings/artwork (Art Title Protection Insurance).

Do museum's have something similar for their collections/acquisitions which would cover things other than paintings?

posted 10-05-2007 10:22 AM            

So far as I know, most of the institutions I've worked with have not carried insurance - they've been mostly smaller ones. I presume some do insure at least their more valuable works. But in many cases I think the rationale goes, better to spend the money on security systems to prevent the loss in the first place.