1l a l i v e avocats good faith, due diligence and acquisition of title to works of art the swiss...
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1L A L I V E
Avocats
Good Faith, Due Diligence
and
Acquisition of Title to Works of Art
The Swiss Law Approach
Carolyn Olsburgh
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Good Faith and Acquisition of Title – Swiss Law
INTRODUCTION
Subsequent purchaserOriginal owner
• Purchase of a work of art from a person without title
• Conflict of interests:
• Civil law v. Common law systems
Good faith has an effect on title (e.g. possibility to acquire title on a stolen object)
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Issue: Good faith or bad faith of the purchaser?
Consequences on:
Original owner’s claim to recover the work of art
Acquisition of title by the purchaser
Good Faith and Acquisition of Title – Swiss Law
INTRODUCTION
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Section I
Was the purchaser in good or bad faith?
Good Faith and Acquisition of Title – Swiss Law
I. NOTION OF GOOD FAITH
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Knowledge about the lack of title at the time of the purchase?
Yes bad faith
No good faith
unless he should have known bad faith
Good Faith and Acquisition of Title – Swiss Law
I. NOTION OF GOOD FAITH
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1. Relevant moment: at the time of the purchase
2. Presumption of good faith (Art. 3(1) CC)
Burden of proof that there was no good faith: former owner
3. No protection of the purchaser when:
• He was in bad faith; or
• His ignorance is due to the fact that he did not pay the required attention (Art. 3(2) CC)
Good Faith and Acquisition of Title – Swiss Law
I. NOTION OF GOOD FAITH
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4. Degree of attention:
• Matter of appreciation
• Objective test: honest man in the shoes of the purchaser?
5. Duty to inform oneself about the title
General rule: only if « concrete reasons capable of putting the title into doubt »
Exception: businesses/trade involving goods of doubtful origin(e.g., second-hand goods, antiques, art)
Good Faith and Acquisition of Title – Swiss Law
I. NOTION OF GOOD FAITH
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On the art market:
The purchaser must inform himself « when he should be suspicious given the circumstances »
Higher standard of care
Irrelevant factors: dealer/non-dealer; purpose of resale or not
Relevant: knowledge of the market in question
Good Faith and Acquisition of Title – Swiss Law
I. NOTION OF GOOD FAITH
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Original Manuscript of the Marquis de Sade(Swiss Supreme Court, 28 May 1998, SJ 1999 I 1)
Good Faith and Acquisition of Title – Swiss Law
I. NOTION OF GOOD FAITH
A (former owner)
D (intermediary renownedspecialist in manuscripts)
C (seller)
B (purchaser)
Stolenmanuscript
Claim torecovermanuscript Sale of
manuscript
France
Switzerland
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Solution for the case
- Renowned intermediary (D)
- Personal relationship between former owner (A) and seller (C)
- High purchase price (= value according to expert)
- BUT: Manuscript not delivered in a case
- HELD: Good faith of B A’s claim was dismissed.
Good Faith and Acquisition of Title – Swiss Law
I. NOTION OF GOOD FAITH
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Section II
Consequences of the distinction
between good faith and bad faith
Good Faith and Acquisition of Title – Swiss Law
II. CONSEQUENCES OF GOOD/BAD FAITH
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Issue 1
Was the purchaser in good or in bad faith at the time of the purchase?
Bad faith: object may always be recovered (Art. 936(1) CC) no possibility to ever acquire title (Art. 728 CC)
Good faith: second stage of the reasoning
Good Faith and Acquisition of Title – Swiss Law
II. CONSEQUENCES OF GOOD/BAD FAITH
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Issue 2
Was the possession lost willingly or unwillingly?
Object ‘subject to a bailment’ (‘entrusted object’): object may never be recovered immediate acquisition of title
Stolen/lost object: object may be recovered during 1 year / 30 years acquisition of title may occur after 30 years
Good Faith and Acquisition of Title – Swiss Law
II.2 CONSEQUENCES OF GOOD FAITH
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a) Object ‘subject to a bailment’ (‘entrusted object’)
Art. 933
The good faith purchaser « must be protected in his acquisition, even if the transferor lacked capacity to pass title »(see also Art. 714(2) CC).
No claim is possible
Immediate acquisition of title
Good Faith and Acquisition of Title – Swiss Law
II.2 CONSEQUENCES OF GOOD FAITH
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b) Stolen or lost object – Claim (Art. 934 CC)
within one year after the owner becomes aware of the place where the cultural asset is located and the identity of the possessor,
but at the latest 30 years following its removal (new statute of limitations since 1st June 2005)
Against reimbursement if the object was bought at a market, at a public auction or from a dealer of objects of the same nature
Good Faith and Acquisition of Title – Swiss Law
II.2 CONSEQUENCES OF GOOD FAITH
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b) Stolen or lost object – Acquisition of title (Art. 728 CC)
Acquisition of title through operation of the limitation period
Peaceful and uninterrupted possession
During a period of 30 years (since 1st June 2005)
Good Faith and Acquisition of Title – Swiss Law
II.2 CONSEQUENCES OF GOOD FAITH
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Good Faith and Acquisition of Title – Swiss Law
CONCLUSION
Good faith purchaser
Entrusted object Stolen/lost object
Bad faith purchaser
Claim within 1 year / 30 years
Claim at any time
No claim
Immediate passing of title Passing of title
after 30 years
No passing of title
If market/ public auction/dealer of objects of same nature:
reimbursement of purchase price
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1. Evolution in case-law
Stricter standards of good faith more easily bad faith
1) No statute of limitations for claim to recover goods
2) No possible acquisition of title by purchaser
Security of transactions?
Security about title?
Good Faith and Acquisition of Title – Swiss Law
CONCLUSION
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2. Recent amendment in the Swiss Civil Code
Longer limitation periods (for good faith purchasers of stolen/lost cultural assets)
1) Extension of the absolute limitation period to 30 years
2) Extension of the period required to obtain title through operation of law: 30 years
Problem: discrepancy between relative limitation period of 1 year and statute of limitations to acquire title
Good Faith and Acquisition of Title – Swiss Law
CONCLUSION
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3. Further steps in the future?
Art. 4(1) of the 1995 Unidroit Convention:
Good faith
• Relevant for compensation, but not for the issue of title
• Burden of proof lies on the current possessor
Good Faith and Acquisition of Title – Swiss Law
CONCLUSION