1. APPLICATION OF LAW TO PRACTICE: SOME CASE STUDIES Monday 4 April 14:45-16:00 Session 8

2. OUTLINE OF THIS SESSION UK Cases Winkworth v Christie [1980] Ch 496 Attorney General of New Zealand v Ortiz [1984] AC 1 US Cases Solomon R. Guggenheim Foundation v Lubell 153 AD 2d 143, 550 NYS 2d 618 (1 st Dept 1990) Republic of Turkey v Metropolitan Museum of Art 762 F. Supp. 44 (S.D.N.Y. 1990) UK Cases Winkworth v Christie [1980] Ch 496 Attorney General of New Zealand v Ortiz [1984] AC 1 US Cases Solomon R. Guggenheim Foundation v Lubell 153 AD 2d 143, 550 NYS 2d 618 (1 st Dept 1990) Republic of Turkey v Metropolitan Museum of Art 762 F. Supp. 44 (S.D.N.Y. 1990)

3. WINKWORTH V CHRISTIE [1980] CH 496 Case 1

4. ISSUES TO CONSIDER Issue of title, tort of conversion Theft (Theft Act 1986: dishonest appropriate of property belonging to another with the intention of permanently depriving the other of it’) Divergence between jurisdictions (England and Italy) Conflict of laws Lex situs undermined by particulars of transaction: connection with another jurisdiction Held: lex situs applies in other jurisdictions Does not matter if left country (of lex situs) as a result of misappropriation Reason: to do otherwise would introduce legal uncertainty Issue of title, tort of conversion Theft (Theft Act 1986: dishonest appropriate of property belonging to another with the intention of permanently depriving the other of it’) Divergence between jurisdictions (England and Italy) Conflict of laws Lex situs undermined by particulars of transaction: connection with another jurisdiction Held: lex situs applies in other jurisdictions Does not matter if left country (of lex situs) as a result of misappropriation Reason: to do otherwise would introduce legal uncertainty

5. ATTORNEY GENERAL OF NEW ZEALAND V ORTIZ [1984] AC 1 Case 2

6. ISSUES TO CONSIDER House of Lords New Zealand statute: Historic Articles Act 1962 (now repealed) S 5(1): ‘It shall not be lawful […] for any person to remove or attempt to remove any historical article from New Zealand, knowing it to be an historic article, otherwise than pursuant to the authority […]given by the Minister under this Act’ s 12(2): ‘An historic article knowingly exported or attempted to be exported in breach of this Act shall be forfeited to her Majesty’ when is it ‘liable to forfeiture’ Held: Not automatically forfeit, but subject to forfeiture NOTE: role of customs officers and police House of Lords New Zealand statute: Historic Articles Act 1962 (now repealed) S 5(1): ‘It shall not be lawful […] for any person to remove or attempt to remove any historical article from New Zealand, knowing it to be an historic article, otherwise than pursuant to the authority […]given by the Minister under this Act’ s 12(2): ‘An historic article knowingly exported or attempted to be exported in breach of this Act shall be forfeited to her Majesty’ when is it ‘liable to forfeiture’ Held: Not automatically forfeit, but subject to forfeiture NOTE: role of customs officers and police

7. SOLOMON R. GUGGENHEIM FOUNDATION VS LUBELL 153 AD 2D 143, 550 NYS 2D 618 (1 ST DEPT 1990) Case 3

8. FACTS The Chagall painting was known by various names: "Menageries" and "Le Marchand de Bestiaux," or "The Cattle Dealer” Painted in 1912 May 1967 Jules and Rachell Lubell paid USD17,000 Other than lending for gallery shows twice, hung in 5 Ave Apartment Guggenheim Museum claimed was stolen form the museum in mid 1960s Accession cards turns out: mail room worker stole, sold on to gallery who sold to Lubell The Chagall painting was known by various names: "Menageries" and "Le Marchand de Bestiaux," or "The Cattle Dealer” Painted in 1912 May 1967 Jules and Rachell Lubell paid USD17,000 Other than lending for gallery shows twice, hung in 5 Ave Apartment Guggenheim Museum claimed was stolen form the museum in mid 1960s Accession cards turns out: mail room worker stole, sold on to gallery who sold to Lubell

9. LEGAL HISTORY Guggenheim: filed claim in 1987 Contends Mrs Lubell did not do due diligence Demands return or payment of USD 200 K (more than the claimed value) Mrs Lubell: Claims Met barred by three year statute of limitations Says Museum waited 20 years, abandoning ownership Sued estate of art dealer who sold her the painting that estate sued previous owner, another dealer Guggenheim: filed claim in 1987 Contends Mrs Lubell did not do due diligence Demands return or payment of USD 200 K (more than the claimed value) Mrs Lubell: Claims Met barred by three year statute of limitations Says Museum waited 20 years, abandoning ownership Sued estate of art dealer who sold her the painting that estate sued previous owner, another dealer

10. COURT OF FIRST INSTANCE: THE TIME BAR Agreed with defendant that Met’s claim is time-barred No exception for works of art "[t]he Guggenheim's efforts [to locate the stolen property] were minimal, [and] inadequate in view of the value of the painting.” Agreed with defendant that Met’s claim is time-barred No exception for works of art "[t]he Guggenheim's efforts [to locate the stolen property] were minimal, [and] inadequate in view of the value of the painting.”

11. THE DECISION while there was a three-year statute of limitations for recovery of a chattel [N.Y. C.P.L.R. § 214(3)], the cause of action accrued when the museum made the demand for return and it was refused no duty of reasonable diligence on the museum for purposes of the statute of limitations However, the court held that the museum's conduct in failing to apprise anyone of the loss of the painting could be considered in the purchaser's laches defense laches is the term given to the equitable doctrine that delay in pursuing a claim or remedy may result in the relief or remedy being lost CONCLUSION The court affirmed the dismissal of appellant purchaser's statute of limitations defense Source -- http://www.lawschoolcasebriefs.net/2013/12/solomon-r-guggenheim-foundation- v.html#sthash.uiwXpUJi.dpuf while there was a three-year statute of limitations for recovery of a chattel [N.Y. C.P.L.R. § 214(3)], the cause of action accrued when the museum made the demand for return and it was refused no duty of reasonable diligence on the museum for purposes of the statute of limitations However, the court held that the museum's conduct in failing to apprise anyone of the loss of the painting could be considered in the purchaser's laches defense laches is the term given to the equitable doctrine that delay in pursuing a claim or remedy may result in the relief or remedy being lost CONCLUSION The court affirmed the dismissal of appellant purchaser's statute of limitations defense Source -- http://www.lawschoolcasebriefs.net/2013/12/solomon-r-guggenheim-foundation- v.html#sthash.uiwXpUJi.dpuf

12. UPHELD ON APPEAL NY law and procedure Civil Procedural rules 214(3): 3 year limit on action to recover chattel, from date when action can be made Claim can be made in case of purchaser of personal property until person claimant to be the owner demands return of the property and demand is refused PRACTICAL POINT: inventory and the importance of claiming in time NY law and procedure Civil Procedural rules 214(3): 3 year limit on action to recover chattel, from date when action can be made Claim can be made in case of purchaser of personal property until person claimant to be the owner demands return of the property and demand is refused PRACTICAL POINT: inventory and the importance of claiming in time

13. ISSUES TO CONSIDER Ripple effects and chains of litigation Reasons for statute of limitations (aka limitations period) Certainty Prevention of stale claims Historical decay of memory, incapacity or death of witnesses Law as inherently conservative Presumption of status quo continuing, not overturning it Narrowing exceptions to the general rule Policy grounds and justice, when exceptions are made Ripple effects and chains of litigation Reasons for statute of limitations (aka limitations period) Certainty Prevention of stale claims Historical decay of memory, incapacity or death of witnesses Law as inherently conservative Presumption of status quo continuing, not overturning it Narrowing exceptions to the general rule Policy grounds and justice, when exceptions are made

14. REPUBLIC OF TURKEY V METROPOLITAN MUSEUM OF ART Case 4

15. THE FACTS 1960s: Treasure hunters excavated a sixth-century B.C. collection from burial tumuli (tombs) in the village of Güre, in the Uşak region of western Turkey, the area of ancient Lydia. The Lydian Hoard, as the collection came to be called (or Croesus Gold, after the legendary King of Lydia), consists of a pair of marble sphinxes, tomb paintings, jewelry and gold and silver objects. Shortly after the find, the looters sold many of the pieces to Ali Bayirlar, a dealer from Izmir. Other objects were recovered by the police. It was later discovered that Ali Bayirlar sold the collection to a New York art dealer, John Klejman. 1966-1970: The collection was acquired in three batches by the Metropolitan Museum of Art 1984: The Met put some of the pieces of the Lydian Hoard on permanent display, but their true provenance was misrepresented. Nevertheless, Turkish authorities were able to conclude that the pieces originated from the Uşak region as they closely resembled the items recovered by the police. 1986: A formal demand for return was made by Turkey. The request was rejected. Above facts sourced from https://plone.unige.ch/art-adr/cases-affaires/lydian-hoard-2013- turkey-and-metropolitan-museum-of-art-1 1960s: Treasure hunters excavated a sixth-century B.C. collection from burial tumuli (tombs) in the village of Güre, in the Uşak region of western Turkey, the area of ancient Lydia. The Lydian Hoard, as the collection came to be called (or Croesus Gold, after the legendary King of Lydia), consists of a pair of marble sphinxes, tomb paintings, jewelry and gold and silver objects. Shortly after the find, the looters sold many of the pieces to Ali Bayirlar, a dealer from Izmir. Other objects were recovered by the police. It was later discovered that Ali Bayirlar sold the collection to a New York art dealer, John Klejman. 1966-1970: The collection was acquired in three batches by the Metropolitan Museum of Art 1984: The Met put some of the pieces of the Lydian Hoard on permanent display, but their true provenance was misrepresented. Nevertheless, Turkish authorities were able to conclude that the pieces originated from the Uşak region as they closely resembled the items recovered by the police. 1986: A formal demand for return was made by Turkey. The request was rejected. Above facts sourced from https://plone.unige.ch/art-adr/cases-affaires/lydian-hoard-2013- turkey-and-metropolitan-museum-of-art-1

16. LEGAL HISTORY 1987: Turkey filed a lawsuit for the Hoard’s return against the Met The latter filed a motion to dismiss the claim on the basis that the limitation period had expired 1990: Trial date 16 July 1990, US District Court New York Motion denied 1987: Turkey filed a lawsuit for the Hoard’s return against the Met The latter filed a motion to dismiss the claim on the basis that the limitation period had expired 1990: Trial date 16 July 1990, US District Court New York Motion denied

17. SUBMISSIONS Turkey: Pursuant to Turkish law, the state owns all artifacts found in Turkey’s jurisdiction Alternatively Met is bona fide purchaser for value but acted in bad faith when it concealed the illicit origin; misrepresentation Met: Defendant may not unreasonably delay making the demand for return Turkey had a duty of reasonable diligence in attempting to locate stolen property and duty to make the demand within reasonable time after possessor identified Turkey: Pursuant to Turkish law, the state owns all artifacts found in Turkey’s jurisdiction Alternatively Met is bona fide purchaser for value but acted in bad faith when it concealed the illicit origin; misrepresentation Met: Defendant may not unreasonably delay making the demand for return Turkey had a duty of reasonable diligence in attempting to locate stolen property and duty to make the demand within reasonable time after possessor identified

18. LYDIAN HOARD Litigation did NOT prevail

19. LYDIAN HOARD Private settlement in 1983

20. CONCLUSION

21. Four common law jurisdiction cases, two each from the UK and the US Importance of procedure and procedural constraints Laches and limitations Justification of legal certainty Technical requirements NOT ALWAYS decisive – can be set aside by judge in some instances Title, theft and effective laundering of title A perverse incentive or preservation of the legal framework? Four common law jurisdiction cases, two each from the UK and the US Importance of procedure and procedural constraints Laches and limitations Justification of legal certainty Technical requirements NOT ALWAYS decisive – can be set aside by judge in some instances Title, theft and effective laundering of title A perverse incentive or preservation of the legal framework?