A tale of two innocents: creating an equitable balance between the rights of former owners and good faith purchasers of stolen art

Art theft has probably been with us for almost as long as there has been art, which is to say, virtually forever. As the value of art transactions has expanded, now totalling billions of dollars annually, the theft of art and the trade in stolen art has kept pace. Stolen art frequently returns to the stream of commerce, where it is often obtained by an innocent good faith purchaser for value who is unaware of the theft many years ago. When the former owner finally locates the art in the possession of this good faith purchaser and commences an action against this innocent purchaser for conversion or replevin, the courts are faced with the unpleasant dilemma of allocat-ing rights and burdens between these two innocent victims of the thief, who is typically either unknown or judgment-proof.

At the heart of the stolen art problem-virtually dispositive in many cases-is the question of the appropriate statute of limitations, i.e., how long after the theft can the former owner sue the current holder of the art? This problem arises from a fundamental principle of law, combined with the unique attributes of art. Anglo-American law is well-settled that neither a thief nor a good faith purchaser from the thief, nor even subsequent good faith purchasers, can pass good title. Indeed, the tort of conversion is unique in that it permits a plaintiff to recover property or money damages from a defendant who is by definition innocent of any wrongdoing or of inflicting harm on the plaintiff, regardless of the defendant's ability to recover against the actual wrongdoer. Despite this unusual situation, courts have, for statute of limitations purposes, treated innocent purchasers no less harshly-and often more harshly-than "guilty" tortfeasors.