Gotha City v Sotheby's (No.2)
| Jurisdiction | England & Wales |
| Judgment Date | 09 September 1998 |
| Date | 09 September 1998 |
| Court | Queen's Bench Division |
Queen's Bench Division
Before Mr Justice Moses
Limitation of actions - law favours true owner of stolen property
The law favoured the true owner of property which had been stolen, however long the period which had elapsed since the original theft.
Section 4 of the Limitation Act 1980 identified a public policy that in England time did not run either in favour of the thief nor in favour of any transferee who was not a purchaser in good faith.
Mr Justice Moses so held in the Queen's Bench Division in finding for the Federal Republic of Germany. A painting, "The Holy Family with Saints John and Elizabeth" by Joachim Wtewael, was formerly in possession of the ducal family of Saxe-Coberg-Gotha.
His Lordship concluded that the painting was then taken from Gotha to Russia in July 1946. It then passed from the Soviet Union to West Berlin in the 1980s, was acquired by Mina Breslav in 1988 and received by Sotheby's in November 1988. It was bought by Cobert Finance SA from Mina Breslav in March 1989 and put up for sale at Sotheby's in 1992.
The Federal Republic of Germany claimed ownership of the painting. The City of Gotha asserted possessory title to it.
The Federal Republic claimed declaratory relief, an order of delivery up and/or damages on the ground that Cobert converted the painting by taking constructive delivery of it in March 1989, by consigning it to Sotheby's for sale at that time, by offering it for sale through Sotheby's to the City of Gotha in October 1991 and or by demanding its return from Sotheby's in August 1993.
The main disputes were whether Germany could establish title to the painting; and, if in the affirmative, whether its claim was time barred under the German law of limitation.
Mr Alexander Layton, QC and Miss Monica Carrs-Frisk for the Federal Republic of Germany; Mr Michael Brindle, QC and Mr Bankim Thanki for Cobert.
MR JUSTICE MOSES concluded that English courts would recognise and enforce the Federal Republic of Germany's title to the painting.
Limitation
The issue was whether after it came into the hands on the person who smuggled it out of the Soviet Union it was misappropriated or whether the painting was misappropriated by a subsequent possessor.
If misappropriation had occurred then the claim would not be barred by effluxion of time under the German law of limitation, if that law applied. His Lordship concluded that the painting was misappropriated in 1987.
Was the German law of limitation relevant?
The Federal Republic of Germany claimed that German law was irrelevant and since Cobert had not purchased the painting in good faith the action was not time barred nor was the Federal Republic of Germany's title treated...
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...839 The most detailed consideration of the public policy exception (albeit obiter) is to be found in the judgment of Moses J in Gotha City v Sotherby's( The Times, 8 October 1998). In that case, the judge derived from the Law Commission report and earlier authorities the following principl......
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