The Case against Statutes of Limitations for Stolen Art

By Bibas, Steven A. | The Yale Law Journal, June 1994 | Go to article overview
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The Case against Statutes of Limitations for Stolen Art

Bibas, Steven A., The Yale Law Journal

In the mid-1960's, a mailroom clerk at the Guggenheim Museum in New York City stole a Marc Chagall watercolor entitled The Cattle Dealer. Museum officials did not notify the police, the FBI, Interpol, or other museums or galleries of the theft. In 1967, Jules and Rachel Lubell bought The Cattle Dealer from a reputable New York gallery and displayed it in their home for over two decades. After learning of the painting's location in 1985, museum officials demanded its return. When Mrs. Lubell refused, the museum began a lawsuit that dragged on for years.(1) Mrs. Lubell claimed ownership as an adverse possessor and under the statute of limitations.(2) In 1991, the New York Court of Appeals sent the case back to the trial court for a determination of the relative blameworthiness of the parties, further prolonging the litigation.(3)

The balancing-test approach adopted by the New York Court of Appeals in Guggenheim exemplifies one of several tangled threads in the law of stolen chattels.(4) Many of the commentators who have written about statutes of limitations for personal property advocate adverse possession, a doctrine borrowed from land law.(5) Other authors endorse a multi-factor balancing of the equities called the discovery rule, an approach similar to the one adopted in Guggenheim.(6) Related doctrines, such as the due diligence and laches rules, also balance the relative equities of the parties.(7)

All of these approaches are flawed. Adverse possession, a doctrine that works well for real estate, is not suited to the very different realm of movable, concealable personal property. Because it ignores an owner's diligence, adverse possession doctrine hurts diligent owners who have reported thefts but are unable to find their property. Since multi-factor balancing tests do not automatically award title to theft victims, they do not adequately deter trafficking in stolen goods. Adverse possession law and balancing tests do not automatically reward theft reporting, nor does either doctrine routinely penalize the purchase of stolen property. Thus, neither approach creates adequate incentives to report thefts and deter the buying of stolen art.(8) Judges and academics have been too preoccupied with ex post dispute resolution to see the ex ante impact of their rules upon future behavior. Therefore, current approaches fuel the market for stolen goods and encourage more thefts.

This Note's thesis is simple: victims of art thefts who promptly report the thefts to the police and to a computerized theft database should never be legally barred from recovering their property. In other words, statutes of limitations should not apply to actions brought by owners who have promptly taken two simple steps to protect their legal titles. Often, a so-called bona fide purchaser (BFP) is negligent when investigating title to an artwork. Now that an international computerized art-theft registry is available, buyers should be encouraged to check the registry and should be held liable if they fail to do so.

Part I of this Note surveys the arguments commentators have marshalled in support of statutes of limitations for personal property and considers the judicial trend toward restricting protection of BFP's. Courts have gradually offered more protection to owners but have done so ad hoc, suggesting that the time is ripe for wholesale legislative reform. Part II criticizes the arguments for protecting BFP's from diligent owners' claims. Part III outlines an alternative legal regime that would protect a BFP if and only if the owner had not reported the theft. This Note concludes that protecting owners by abolishing limitation periods for many types of personal property would be both economically efficient and morally just.


To understand why the current law is unsatisfactory, one must understand what the law is and how it arose. Adverse possession, for instance, is a land law doctrine that courts first imported into cases involving stolen animals.

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