[NHCOLL-L:2065] RE: Stolen collections

[Barker at mpm.edu]

Marilyn Phelan raises excellent points.  What's been left unsaid, but
affects the discussion all the way around, is that title isn't a right per
se, but is usually seen as a bundle of rights, and the rights are separable.
Most legal discussions center on the concept of perfect title, which
essentially means the whole bundle.  Most of the sticky issues involve
either the protection of different rights within that bundle, what happens
when the bundle is separated into its different parts, or the consequences
of failing to exercise those rights with due diligence.
 
Adverse possession might not apply (it's more commonly applied to real
rather than personal property in any event) but without knowing more about
the case it's hard to say.  In the case of a dealer actively trying to sell
the collection, as here, especially if they've been advertising that they
hold the collection, it's an open question.  More details on the
applicability of adverse possession is found in Ward, et al., 1980 "Museum
Objects of Concern III:  Adverse Possession," in *Proceedings: Legal
Problems of Museum Administration,* ALI-ABA pp. 83-118.
 
Foreign museums face additional challenges in reclaiming material. Natural
history collections have somewhat less protection than cultural collections,
simply because art and art objects have certain international protections by
treaty (if nothing else).  Hopefully that is changing/will change.
 
Alex

 -----Original Message-----
From: Richard Monk [mailto:monk at amnh.org]
Sent: Thursday, August 28, 2003 7:03 AM
To: NHCOLL-L at lists.yale.edu
Subject: [NHCOLL-L:2064] Fwd: RE: Stolen collections



From: "Phelan, Marilyn" <mphelan at law.ttu.edu>

            Adverse possession should not apply here as the current
possessor would not have held property "openly, notoriously, visibly,
exclusively, and continuously" against the rightful owner.  

             If the property was stolen, the currently possessor would not
have ownership.  One who purchases property, no matter how innocently, from
a thief, or all subsequent purchasers from the thief, acquires no title in
the property. This basic principle is set out in the Uniform Commercial Code
at sec. 2-403.  However, an action in conversion by the rightful owner to
recover the property may be time barred or the doctrine of laches may
preclude recovery.  In New York, however, the Statute of Limitations would
not run until the rightful owner demanded a return of the property and the
current possessor refused to return the property.  Thus, the action probably
would not be time barred in New York.  In most other states, an action for
recovery of the property would accrue and the statute of limitations would
begin to run when the rightful owner discovered, or by the exercise of
reasonable diligence, should have discovered the current possessor of the
property.              

            California has addressed the statute of limitations issue by
statute.  It has adopted a 3 year statutory limitation period that begins to
run at "the discovery of the whereabouts of the article by the aggrieved
party..."  Cal. Civ. Proc Code  sec. 338(c).

            Obviously theft charges can be brought against the possessor if
he or she is aware the material was stolen.  However, local law enforcement
also can file charges pursuant to the National Stolen Properties Act (18
U.S.C. secs. 2314-15).  This act makes it a felony to receive, possess,
conceal etc."...any goods....which have crossed a State or United States
boundary after being stolen...."  

                 Marilyn Phelan

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