Looted Art, Art Theft
Wartime claim on old-timer still valid?
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12 juli 2012
 

On 29 May 2012, the Hamburg District Court rendered an important decision in a matter concerning a vehicle that was taken from Germany in 1945 by U.S. soldiers. The car, a Mercedes-Benz 500K Spezial, had been acquired by Hans Friedrich Prym in 1935. This unique and valuable car disappeared when Prym had been imprisoned by the allied forces. The Mercedes at some point in time after the Second World War resurfaced in the United States, in any event around 1976. The old-timer was put up for auction in 2011 in California, as the heirs had come to learn. The auctioneer allegedly refused to hand-over the vehicle. Mr. Frans van Haren, a Dutchman, acquired the old-timer at the auction.

The car after the auction was shipped to Germany to be displayed at the Techno Classica Car fair in Essen in March 2012, at which point the German authorities seized the car.

Now a dispute has arisen over the ownership of the valuable car, between the heirs of the original, dispossessed, owner (Prym), and the later acquirer. The first round of the fight has not been decided in favor of the (successors to the) original, dispossessed, owner.

The Hamburg District Court in its 29 May 2012 decision held that the original, dispossessed, owner still has a valid claim to recover the old-timer, despite the 30-year prescriptive limitation period under German law. The Court held that the 30-year period did not continue to run as of 1945 because the car meanwhile had been shipped to the United States. Further, the Court held that the U.S.-law prescriptive limitation periods have applied during the time that the old-timer was on U.S. soil, which have also not expired. When the old-timer returned on German soil, a new prescriptive limitation period started running under German law. The Court further held that the fact that persons other than the original owner have had adverse possession of the car for over 30 years is irrelevant, for the reason that US law does not allow former years of (adverse) possession to be "tacked" to the present possessor's years of possession for a cumulative 30 years of adverse possession (even though German law accepts the principle of "tacking").
 
The Court further held that the purchaser is not worthy of protection as a good faith purchaser, give that under US law the bona fide purchase rule does not apply to stolen objects, even if the purchaser acted in good faith.

The case raises a number of questions. For example, how come the limitation period is held to have stopped running for reasons that the car was shipped to the US after 1945? The car returned to German soil in 2012, and why did the limitation period not simply continue to run under German law? A German court decision from 2006 suggests that an intermediate relocation of an object to the former German Democratic Republic and the former USSR were not held to affect the running of the limitation period under German law. Similarly, the Court's refusal to consider "tacking" earlier periods of possession for cumulative years of adverse possession can be questioned. The principle of "tacking" years of possession is accepted under German law and is a relevant aspect to determine whether someone's claim to recover an object is time-barred. Apparently, the German Court gave precedence to US law over German law, given that the old-timer was dispatched in the US for a significant period of time. A further issue is why the German court did not look into the reasons why the (successors to the) original owner did not seek to recover the old-timer in the US when he learned of the car's whereabouts and to attempt to stop the auction. Shouldn't the doctrine of laches (did the Prym heirs "sleep on their rights"? ) have been considered in this respect?

In conclusion, the case will undoubtedly be further scrutinized.

The judgment shows the delicate and complex nature of local, national, limitation periods. A minefield for both lay persons and trained lawyers.

We thank Moritz Kramer for passing on a copy of the judgment.

Link to the judgment.

 

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This post is researched, written, and published on the Art Law blog of Oostwaard Advocaten at oostwaard.com/kunstrecht. Text copyrighted 2012 by Oostwaard Advocaten. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: www.oostwaard.com

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