According to recent articles in the Antiques Trade Gazette, Art Newspaper and several other English papers, a painting by Sir Joshua Reynolds stolen in the UK has ended up in Japan at the collection of the Fuji Tokyo Art Museum (“the Museum”). The Museum claims that it purchased the work with valid title.

The disputed Reynolds portrait.

1. Facts

In 1984, the Reynolds painting titled ‘Portrait of Miss Mathew, later Lady Eliza, sitting with her dog before a landscape’ was stolen with other Old Master paintings from the home of Sir Henry and Lady Price in East Sussex. The theft was reported to the police but no arrests were made and the work disappeared.

In 1988, the Reynolds’ portrait was sold at Sotheby’s to a London art dealer who sold it to the Museum in 1990. Since then, the work has been exhibited and introduced to the public as one of the Museum’s masterpieces. It was also loaned for special exhibitions held in other Japanese and overseas museums frequently. For example, the work was exhibited at two Korean museums in 1990, the China Art Gallery in Beijing in 1992, Hong Kong Museum of Art in 1997 and a national museum in Taiwan in 2000.

In 2015, Art Recovery International (“ARI”), a private institution specialised in recovery of stolen artworks, first contacted the Museum to inform it that the painting had been stolen and was being claimed by its clients, the heirs of Lady Price. Since then, ARI has requested the Museum to return the work repeatedly.

However, the Museum asserts that it purchased the painting in good faith and without fault from a respectable art dealer, and accordingly the original owner’s claim was groundless. On that basis, the Museum would require proper compensation if the owner further demands the return of the painting.

Against this assertion, ARI insists on behalf of the Price family that the Museum should not be called a good faith purchaser because it did not conduct independent provenance research, which should have been done in accordance with the ICOM guidelines. ARI alleges that, when the Museum acquired the painting in 1990, it was aware of ownership of the work only up to 1947 with no account thereafter, and “a 46-year gap in the provenance should have been a major red flag for any cultural institution.”

If the above dispute was brought to court in Japan, could the Price family successfully repossess the stolen painting? As analysed in 2 and 3 below, the decision of the court would unlikely be in favour of the Price family.

2. Immediate Acquisition in Good Faith

Assuming that the painting was sold to the Museum in the Japanese territory, under Japanese law its ownership would be acquired by the Museum immediately upon the sale. Under Article 192 of the Civil Code, a person who enters into possession of a chattel by way of sale will acquire ownership of that chattel immediately unless it is proved that he or she purchased it in bad faith or with fault. Japanese courts generally presume that a purchaser in a normal sale transaction was in good faith and faultless unless there are particularly suspicious circumstances. A 46-year gap in the provenance may not be considered as a sufficiently suspicious factor, taking account that UK art professionals such as Sotheby’s and the intermediate art dealer overlooked the same fact. Consideration could also be taken that the Museum purchased the painting before the Art Loss Register was founded in 1991.

However, this analysis is applicable only in the case where the transaction took place in Japan. If the Museum staff visited the UK to purchase the painting from the London art dealer, the above-mentioned provision of the Civil Code would not apply in accordance with the Japanese conflict of law rule, adopting the doctrine of lex situs.

3. Acquisition by Adverse Possession

Even if the painting was not purchased in good faith or it was purchased outside Japan, the Museum would be able to acquire its ownership under the rule of adverse possession. Under Articles 162(1) of the Japanese Civil Code, a person who possesses any property, personal or real, of another person for 20 years shall be entitled to acquire ownership thereof unless the former person possesses the property without the intention to own it, or peaceful and open possession by such person was disrupted at any time during the period of 20 years. In this regard, the possession does not have to commence by a transaction in good faith. By virtue of this rule, the Museum would be entitled to defeat the claim of the Price family because it had possessed the Reynolds painting as its own collection peacefully and openly from 1990 until at least ARI contacted it in 2015.

4. Moral Obligation

However, aside from lawful ownership, the Museum ought to have heeded its ethical obligation to ensure that it did not acquire an object (i) in which it could not be sure of acquiring valid title or (ii) that had been acquired or exported contrary to a foreign country’s laws (as was required at the time by the 1986 ICOM Code of Professional Ethics for museums).