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BGH on gaing property right of stolen works of art

The V. Civil Senate of the Federal Court of Justice, which is responsible, inter alia, for claims arising from property ownership and ownership of movable property, has decided that the allocation of the burden of proof resulting from Section 937 of the German Civil Code shall apply to the era of a work of art, even if the work of art is previous owner was stolen.


The plaintiff is the grandson of the painter Hans Purrmann, who died in 1966, from whom the paintings are said to have originated. The defendant is a car parts wholesaler and has no special art knowledge. In June 2009, the defendant’s daughter contacted an auction house in Lucerne to have the paintings sold or auctioned. An employee of the auction house inspected the paintings at the defendant’s office and then contacted the police. The Public Prosecutor’s Office then opened an investigation against the defendant on suspicion of stealing, during which the images were confiscated. After the procedure has been followed in accordance with Section 170 para. 2 StPO had been discontinued, the public prosecutor deposited the paintings with the district court in early 2010.

The applicant claims that it is the original paintings ‘Woman in the Armchair’ from 1924 and ‘Flower Bouquet’ from 1939 by the painter Hans Purrmann, which he gave to his daughter, the applicant’s mother, and which, by way of succession, fell into the property of the plaintiff and transferred to his sister, who had assigned her claims to the applicant; these paintings were stolen, along with other paintings, in 1986 during a break-in at the estate of the applicant’s parents. The defendant claims that he allegedly received the paintings in 1986 or 1987 from his stepfather, who, according to his own statements, purchased them from an antiques dealer or collector in Dinkelsbühl. According to the findings of the Court of Appeal, the paintings were first hung in the defendant’s private home and then in his company. They were later kept in a cupboard on the upper floor of the company building.

Previous process history

The landgericht dismissed the action and upheld the counterclaim. The plaintiff’s appeal was rejected by the Higher Regional Court.

The decision of the Federal Court of Justice

The 5th Civil Senate of the Federal Court of Justice annulled the judgment under appeal and referred the case back to the Higher Regional Court for a new hearing and decision.

Pursuant to Section 937 para. 1 BGB acquires the property of the person who owns a movable property for ten years. However, the gaining of property right is in accordance with Section 937 para. 2 BGB excludes if the acquirer is not in good faith when acquiring his own property or if he later learns that he is not entitled to the property. The burden of proof for the ten-year ownership of the case is placed on the one who invokes the property right, whereas the conditions of paragraph 2 must be proved by the person contesting the gaining of the property right and requiring the surrender of the case.

The Bundesgerichtshof has held that, contrary to a view held in the case-law and literature, this also applies in the case where the owner sued for surrender is entitled to acquire the property from the previous owner even if the item has been stolen or is lost. This follows from the fact that the legislature considered the provision of Paragraph 937 of the German Civil Code to be necessary, especially in the view of stolen or lost items, and deliberately chose not to make the good faith of the sitting person a condition of the gaining of property right, but only to determine an exception in the event of evil faith.

However, the owner of a property stolen, lost or otherwise lost to the previous owner, who is being sued for publication, regularly encounters a secondary burden of presentation for his good faith in acquiring his own property. If the previous owner has refuted the circumstances of the acquisition of the property alleged by the owner who is being sued, the conditions laid down in Paragraph 937 para. 2 BGB as proven.

The Bundesgerichtshof annulled the appeal judgment on the ground that there was no assessment of the facts relating to the defendant’s specific submission, whether or not the alleged acquisition proceedings should be regarded as rebuttal, and because of further procedural errors of the Appellate court.

In doing so, the Bundesgerichtshof (Federal Court of Justice) has also made it clear that a general obligation to investigate the acquisition of a work of art, which is also applicable to lay people in the field of art and the art trade, is a prerequisite for good faith in accordance with Paragraph 937 of the Art Scheme. 2 BGB does not exist; however, the purchaser may be in bad faith if special circumstances have had to arouse his suspicions and he ignores them.

Marian Härtel

Marian Härtel

Marian Härtel is a lawyer and entrepreneur specializing in copyright law, competition law and IT/IP law, with a focus on games, esports, media and blockchain.

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