A Combined Discovery Rule and Demand and Refusal Rule for New York: The Need for Equitable Consistency in International Cases of Recovery of Stolen Art and Cultural Property

Abstract

The problem of stolen art and cultural property has become more frequent and more international in scope in recent years. When stolen art is actually located—an event quite rare in itself—the ensuing conflict is often one between two innocent parties: the original owner whose property was wrongfully taken, and an innocent purchaser who believed she made a bona fide purchase and subsequently obtained good title. With many different jurisdictions presiding over these international disputes over the recovery of stolen art, the result has been a national common law marred with inconsistencies in how these cases are resolved. Despite international efforts to promote uniformity in national domestic laws relating to recovery of stolen artwork and cultural property, the fact remains that each nation, and in the United States each state, has its own rules regarding bona fide purchasers and statutes of limitations. A complex problem arises, therefore, especially in American courts, where there is little consistency.

This Comment proposes a solution to this complex issue by examining the case law in this area and analyzing the shortcomings of two doctrines—the discovery rule and the demand and refusal rule—when applied by themselves without taking into account other considerations. The premise of this Comment is that the two doctrines should be combined in order to create a more consistent and equitable law with specific focus on the recent New York case Greek Orthodox Patriarchate v. Christie’s, Inc. In this case, the court granted summary judgment and did not resolve several factual aspects of the case. The premise of this Comment is that courts should not strictly apply one rule over the other, but rather should take into consideration all factors of each individual case, and apply a combination of the rules in order to come up with the most fair result.