Private International Law, Art and Cultural Heritage

Private International Law, Art and Cultural Heritage

Christa Roodt

In this timely book Christa Roodt demonstrates how the structure and method of private international law can be applied in its expanding relationship with cultural heritage law. In particular, she explores the use of private international law in the context of ownership claims and the illicit trafficking of cultural objects. She shows how, in decisions about classification and the public policy exception, and in the application and treatment of foreign public law, value-rationality and mutuality can defeat the dogmatic underpinnings of conflicts and jurisdiction rules that frustrate the achievement of global solidarity.

Chapter 5: Title laundering in complex ‘lock’ jurisdictions

Christa Roodt

Subjects: law - academic, cultural heritage and art law, private international law


In later ius commune development concerning purchases from someone who does not own what is sold, the view that moveables cannot be pursued (mobilia non habent sequelam) came to compete with that axiom of property law expressed in the maxim that nobody can transfer a greater right than she owns (nemo plus iuris transferre potest quam ipse habet). The policy basis of the former is the perceived commercial imperative that, in principle, the bona fide purchaser of a moveable thing, in a normal market context, should get a good title regardless of provenance. The latter prevents the bona fide purchaser from acquiring title if the transferor did not have title to convey, or from claiming compensation when restitution is made to the owner. The tension between the two positions is reflected in the range of solutions of modern European law concerning whether and when the prior title of the owner is extinguished or his action for restitution is barred. Legal systems tend to reflect a preference between these two approaches in corporeal moveable property title issues in general. A few legal systems make exceptions for cultural moveables. Others apply specific rules that safeguard the public interest associated with different public and private rights by means of restricted transfer, indefeasible title, imprescriptability or public domain rules. Cultural objects merit special treatment, but general commercial law rules are readily extended to proprietary rights in these objects, even when smuggling is suspected.

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