The case of the stolen painting

This claim came before the Court of Appeal in 2003, from the Central London County Court via the High Court. Professor Norman Palmer represented the claimant.

This may be what the painting looked like.

This may be what the Jan Steen painting at the centre of this claim looked like.

If I travel to your town, pick your lock, take a lovely locket from your home and make sure to leave no trace of my presence, go to the post office and post the locket to my home or to someone else’s address, can you sue Royal Mail for having shipped the stolen locket if you somehow find out and can even prove that Royal Mail transported your locket? “Of course not.” I can hear you say it.

Royal Mail was just doing its job for which it had been paid (postage). It had no way of knowing that the box or envelope it shipped contained stolen goods. Royal Mail has no obligation to check whether the contents of a shipment might be stolen. If you tried to take it to court, you likely wouldn’t get far but the whole thing could cost you quite a bit of money.

I could also take your locket and give it to my mother whom I’d happened to be meeting for lunch that day. If she then decided to mail it to her home, appreciating the lovely gift while having no idea that the locket was stolen, would Royal Mail be liable with regard to my theft? “No.” I can see you shake your head.

The role of an auctioneer is similar, though far from the same. That’s largely because the auctioneer has the power to sell the locket – or in this case, a stolen painting – to another party on behalf of the person who puts the item up for auction. Its agreement with its customers is more elaborate than an agreement with Royal Mail (often expressed by the use of a stamp). And unlike Royal Mail, an auctioneer does get to examine the goods because they are not in a sealed box or envelope that it can’t open.

The background

  • “The backgammon players” is a 17th-century painting by Dutch painter Jan Steen, one of the Old Masters.
  • It appeared at Christie’s three times before 1974, according to an article in the Antiques Trade Gazette.
  • In July 1979, it was Lot 225 ­at Christie’s in London, according to the Blouin Art Sales Index.
  • In 1979, the painting was stolen from the London home of Mr Marcq. Mr Marcq reported the theft to the police as well as to the Art Loss Register, according to several sources including the Court of Appeal’s judgment.
  • Mr Schuenemann then offered it to Christie’s New York, which did not accept it, for unknown reasons.
  • In 2000, the painting showed up for sale at a Dutch art gallery. That’s when the Art Loss Register spotted it and alerted Mr Marcq, according to the article in The Guardian. Mr Marcq then decided to take Christie’s to court.

In a nutshell, the claimant argued that Christie’s power to sell the painting (also privately, if the painting did not sell at auction), and place a lien on it in the event that the painting did not sell and remained uncollected for more than 35 days, as well as the seller not being allowed to withdraw the painting from auction without Christie’s consent made a difference relative to the situation of Royal Mail transporting a package, keeping it in storage, not handing it to just anyone, and in some cases even refusing to give it to you until you hand over some money.

The Court of Appeal did not agree.

An article in the Law Gazette summed it up as follows:

The only circumstance in which auctioneers might owe a duty of care to return to the rightful owner was in bailment. While a bailor-­bailee relationship existed between Christie’s and Mr Schunemann, Christie’s was wholly unaware of Mr Marcq’s interest.

While the claimant’s approach was entirely understandable, a practical line has to be drawn and upheld when it comes to mere “innocent handlers” of goods. As the Court of Appeal (Lord Justice Tuckey) said:

“It is interference with the title or ownership of the chattel which counts for conversion. Thus it is the act of delivery following sale which makes the auctioneer liable in conversion since that is what interferes with the title or ownership of the goods. A sale without delivery does not have this effect and does not therefore amount to conversion.”

The Court of Appeal also said:

“Auctioneers such as Christies must of course take care to avoid dealing with works of doubtful title since they will be strictly liable if they sell on behalf of anyone other than the true owner, but that is not a policy reason for making them liable when they do not sell and simply return the goods to their client in good faith and without notice of the true owner’s interest.”

“If of course there are circumstances which should put the agent on enquiry then a positive case of negligence on conventional grounds can be alleged.”

An interim order was made for the costs incurred in the lower courts, of £25,000. The costs of the appeal were £15,000. All payable within 28 days.

Don’t be fooled by the high value of the painting in this case. The same principles apply when it concerns items of much lower values, but in those cases, costly law suits are rarer. That makes sense!

You can read the full judgment: here.

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