Private Law Theory

ABSTRACT
This contribution explores how private law may contribute to the protection of cultural property against illegal trade. First, the impact of private international law is examined, as the national rules that govern the applicable rules on loss and acquisition of ownership differ considerably. This chapter argues that the law of the country from which the object was first illegally exported should be applicable. Regarding material private law, the ways in which the rules on loss and acquisition of ownership should be shaped and applied are discussed. In particular, the chapter proposes to apply strict rules to the requirements for an acquisition of ownership based on good faith. This might be a more effective way to combat the market for illegal transactions than criminal prosecution. It is argued that the general public’s interest to preserve cultural heritage deserves better protection than the interest of an individual buyer. Another important topic is limitation of an action for restitution. This chapter proposes to abolish any rules that establish a time limit for such claims, as the rules on peremptive prescription favour the individual buyer who is not able to present a sound title of ownership, and therefore does not deserve this protection.

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Christian Armbrüster, Stemming Illegal Trade of Cultural Property – How Can Private Law Contribute? in Michelle D Fabiani, Kate Melody Burmon and Saskia Hufnagel (eds), Cultural Property Crime and the Law – Legal Approaches to Protection, Repatriation, and Countering Illicit Trade, Routledge, published April 2024.