Last February, the Second Civil Division of the Italian Supreme Court (Corte di Cassazione) published a decision (No. 2612 of 4 February 2021) involving the Oedipus Rex, a painting attributed to Pierre-Auguste Renoir.
By partially quashing the decision of (and referring the dispute back to) the Venice Court of Appeal, the Supreme Court could not put an end to a dispute that started over 10 years ago. The wheels of justice can move slowly, especially in Italy.
On 2 April 1981, the painting was acquired – at Sotheby’s London – by a company that subsequently transferred it (without any document proving the transfer) to an Italian buyer based in Rome (the “Buyer”). The painting was kept in the Buyer’s private home until 28 April 1984, when the painting was stolen.
More than twenty years later, the painting was found in the possession of an Italian architect based in Asolo in the north east of Italy. The heirs of the Buyer sued the architect in the Civil Court of Treviso to reclaim the painting.
In parallel, the case was brought before criminal courts in Italy. Pending a decision of the civil courts on the painting’s ownership, the criminal proceedings against the architect for possession of stolen goods were suspended (and remain suspended to this day).
In the civil proceedings, the Court of First Instance ordered the architect to deliver up the painting to the heirs on the ground of the “identity, beyond reasonable doubt, between the stolen painting and the artwork in the architect’s possession”.
The architect, who had inherited the painting from his mother (who passed away in 2003), appealed the decision before the Courts of Venice. The first ruling was confirmed on appeal on the following grounds:
(i) the architect was unable to provide any evidence of his mother’s acquisition of the painting (as the agreement was probably not recorded in writing); as a result, it was unclear whether she had acquired the painting in good faith and the Court could not apply the rule on good-faith acquisition (Article 1153 of the Italian Civil Code, see below) in favour of the deceased mother or the architect;
(ii) the architect was unable to demonstrate the starting date of his possession; as a result, the Court could not apply the rule of uninterrupted possession (Article 1161 of the Italian Civil Code, see below); and
(iii) the Buyer’s heirs had not brought an ‘azione di rivendicazione’ (i.e. an action brought by the legitimate owner to establish its legal title and to order the defendant to return the disputed property). Instead, they brought an action in restitution. This meant that the Buyer’s heirs were not required to adduce evidence of their own title to the property.
The decision of the Supreme Court
The architect challenged the decision of the Court of Appeal of Venice before the Italian Supreme Court on several legal grounds. He reiterated some of the arguments raised before the Court of Appeal and argued that:
a. Article 1153 of the Italian Civil Code (on good-faith acquisition) applies.
According to this article, the good-faith buyer is preferred over the victim of theft when two conditions are met: (i) the buyer acquires possession of the property in good faith, and (ii) ownership is transferred to the buyer based on a contract that validly passes ownership to the property. In this case, there was no evidence of the mother’s good faith when she acquired the painting. The focus was on whether the architect had acquired the painting in good faith. He had acquired the painting at the death of his mother by way of a so-called ‘successione universale’ (whereby the successor (the architect) acquires all the assets and assumes all the liabilities of the deceased person (his mother)), pursuant to Article 459 of the Italian Civil Code. As a result, he acquired the painting by virtue of his unilateral acceptance of his mother’s estate. According to the Supreme Court, acceptance of an estate does not meet the condition described in point (ii) above. In fact, this transfer scheme qualifies as a “unilateral manifestation of the successor’s will, and not of the deceased’s will” (Italian Supreme Court decision No. 6890 of July 23, 1994). Consequently, the Supreme Court concluded that the painting’s ownership was not transferred based on a contract that validly passed ownership (for the purposes of good-faith acquisition of stolen goods) and Article 1153 of the Civil Code did not apply.
b. Article 1161 of the Italian Civil Code (on uninterrupted possession) applies.
According to this article, a good-faith possessor who does not conclude a contract transferring ownership to property becomes the owner of the property after ten years of uninterrupted possession (acquisitive prescription). Based on that principle, the architect claimed that his mother died in 2003 and that he was in possession of the painting for more than a decade, specifically until 2014 (when the decision of the Court of First Instance was rendered). However, the Supreme Court rejected that argument, and held that (i) the architect failed to properly demonstrate the starting date of his possession of the artwork, and (ii) his possession had been interrupted years before 2014, namely when he was served the claim by the Buyer’s heirs and not, as he maintained, when the first court rendered its decision. Accordingly, Article 1161 of the Civil Code did not apply.
c. There is no evidence demonstrating that the Buyer’s heirs were the legitimate owners of the painting, as its provenance was fragmented and scarcely documented.
The architect argued that the claim by the Buyer’s heirs should have been qualified as a rivendicazione and not as an action in restitution. Had they brought an ‘azione di rivendicazione’, the Buyer’s heirs should have provided evidence in support of their ownership. The Supreme Court confirmed the validity of the architect’s argument and held that an action in restitution can be used solely to obtain the return of property voluntarily transferred (based on a lease, loan, deposit, etc.) by the claimant to the defendant (for instance, after the expiry date of the contract). However, when the claimant is the alleged owner of stolen property, an action in restitution cannot be brought instead of a rivendicazione just to avoid the burden of proof associated with a rivendicazione. Thus, the Buyer’s heirs must bring a claim in rivendicazione and duly establish their own ownership of the painting.
According to the Supreme Court, the Court of Appeal failed to properly qualify the claim made by the Buyer’s heirs and given the way in which the claim was framed, to require full disclosure of the painting’s provenance, a condition essential to asserting their claim. Consequently, the decision of the Venice Court of Appeal was partially quashed and the dispute was sent back to Court of Appeal, now charged with assessing the painting’s provenance in order to ascertain whether the Buyer’s heirs are, in law, the legitimate owners of the painting.
Citing the writer and curator Dr David Anfam, “[p]rovenance drives the restitution of works to their rightful hands”: we shall see whether or not, in this case, provenance will mean that Oedipus Rex goes back to its Roman home.
This case illustrates the fact that in Italy, the possessor of a stolen artwork is not necessarily treated as its owner. The law can come to the rescue of the victim of theft. Whilst evidence of your good faith when you bought a stolen artwork can go a long way, good faith may not be easy to prove. If the current possessor acquired the disputed work by descent, there are further hurdles to overcome if he is to succeed in an action brought by the victim of theft.
By Francesca Barra and Pierre Valentin