Stolen Cultural Property: Implications of Vitium Reale in Private Law and Private International Law

Roodt, C., and Carey-Miller, D. (2013) ‘Stolen Cultural Property: Implications of Vitium Reale in Private Law and Private International Law’, Transnational Dispute Management 5.

Legal systems tend to reflect a preference between mobilia non habent sequelam (moveables cannot be pursued) and nemo plus iuris ad alium transferre potest quam ipse habet (no one can transfer to another a greater right than he himself has) in corporeal moveable property title issues in general. Cultural objects merit special treatment, but comparatively few systems have specific rules or exceptions for cultural moveables. General commercial law rules are readily given extended application. A value judgment is involved in denoting an object as ‘cultural’. When stolen art moves across jurisdictional lines, courts may use the property transaction as a basis for classification without checking whether theft attaches thereto. Choice of law method can elevate legal rules above fact and context on the basis of the broad lex situs rule (the law of the place in which property is situated) of private international law. The lex  situs rulestrengthens the commercial imperative as applied to transactions involving cultural objects. This article argues that result-selection is desirable. The applicable law must be selected on the basis of a policy choice in favour of the party who lost possession on account of the vice of theft, and time ought not to affect the deprived owner’s rights. This article demonstrates how the acknowledgement of vitium reale (inherent taint or defect in a title to property) in conflicts method eases tensions between private law and criminal law in the art markets in New York and England.

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