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Harvey Manes MD

Introduction - Article by Harvey Manes MD - continued

Art theft involves an authentic work of art that is stolen from the original owner and then sold or transferred to an unknowing museum, dealer or collector. "With between 45,000 and 53,000 art thefts taking place throughout the world every year it is no exaggeration to say that art theft has reached "epidemic proportions." Sky rocketing art prices have made theft very attractive to criminals. Art theft is estimated to be second only to drug trafficking as the most profitable form of illegal trade. In the years between 1988-91, N.Y. art theft rate had more than tripled. Once the artwork is discovered to be stolen, the courts must then decide whether the piece should be returned to the original owner and who should be held responsible for the monetary loss. Unfortunately the courts of different countries and states reach different conclusions. The civil law nations (e.g. Switzerland, Germany, France, Italy, Mexico) favor the GFP while the common law nations (e.g. U.S. Great Britain, Canada) favor the original owner. The difference in the law between these nations facilitates "art laundering." For example, because of the liberal laws, which favor the GFP, Switzerland, is considered a haven for art theft.
Art theft is similar to art fraud because somewhere in the chain of transfer of title, fraud is committed. The unknowing and innocent buyer in both arenas include art dealers, museums and retail clients, all of whom could lose large sums of money. Whether there is fraud or theft the courts often have to make the difficult decision as to "who should be left holding the bag" between two innocents, the innocent seller or original owner and the unsuspecting buyer. Unfortunately, the courts have failed to develop uniform standards for many of these questions.
This note will examine the existing legal regimen and provide a sampling of well-known cases that illustrate how the courts currently handle art fraud and art theft. Section 1, will describe examples of art fraud cases, while Section 2 will presents cases involving stolen art and what the state of the law is regarding this issue. Finally, this note will conclude in Section 3 with recommendations for changes in the law based on fairness and logic, in order to protect the rights of all those involved in an attempt to counteract the epidemic that currently exists.

Section 1-The Issue of Art-Fraud

Harvey Manes, M.D.

Copyright 2005 by - All rights reserved.





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