The Sparta-painting case: did the “finder” become owner? (UPDATE)

Introduction

Sparta, the Rotterdam football club, has been trying to retrieve a painting, attributed to the artist J.H. van Mastenbroek, since November 2010.

On 18 November 2010, Mr. X presented himself as the longstanding owner of the painting in a television program called "Tussen Kunst en Kitsch", the equivalent of BBC "Antiques Roadshow". X, a carpenter, claims that he found the painting in 1997 in a rubbish skip during renovation works on the Sparta Stadium ("Het Kasteel", or the Castle) in which he was involved at the time. In the televised show the expert valued the painting at an amount between € 20.000 tot € 25.000.

Sparta claims to be the real owner. Sparta denies that it ever intended to dispose of the painting. Sparta had received the painting as a gift from a group of its eldest and active supporters, the famous "Oer-Spartanen", and had been in Sparta's possession since the 1930's. The painting hung in Sparta's former boardroom. Sparta claims the painting had been placed in a container for safe-keeping on Sparta's premises during the renovation works. Only after the works had completed, Sparta discovered that the painting was missing. Sparta requested X to return the painting. X refused to comply with that request.

Attachment and summary proceedings for hand-over

In December 2010, Sparta attempted to levy an attachment on the painting. At the time, X claimed that he no longer had possession of the painting. He alleged that he had sold the painting immediately after the televised show, to someone present at the set. This statement later turned out not to be true.

Sparta subsequently initiated summary proceedings against X to demand and take back the painting. On 22 February 2011, the Judge denied the request. The Judge held that Article 3:119 sub 1 of the Dutch Civil Code provides that the possessor of an asset is presumed to be the proprietor of that asset. Sparta, in the view of the Judge, had not been able to rebut that presumption in summary proceedings.

"The issue at hand is whether (the predecessor of) Sparta has abandoned its possession of the painting with a view to dispose of the ownership, in the sense of article 5:18 of the Dutch Civil Code, or whether [X] justifiably relied upon the abandonment. In answering this question, all factual circumstances surrounding the loss of the possession and the manner how [X] obtained the painting are of importance. In the event employees of the building company took the painting to a dumpster during renovation works in 1997, as [X] asserts (and Sparta denies), circumstances may dictate that [X] was obliged to investigate whether Sparta really wanted to dispose of the painting. (...)"

The Judge held that further investigations of the facts was required and that this was unwarranted in the context of the injunctive proceedings.

The Judge further ordered for judicial custody of the painting. The Judge held that Sparta justifiably feared for the disappearance of the painting if it were to remain with X, given the fact that X had previously made false statements to the court bailiff.

Case on the merits: revindication

On 3 January 2011, Sparta filed suit on the merits before the Rotterdam District Court. Sparta's primary claim is revindication (demand and take back) off the painting.

On 7 September 2011 the Rotterdam District Court rendered an interim judgment.

X claims that he is to be regarded as the owner pursuant to Article 5:18 of the Dutch Civil Code. Article 5:18 of the Dutch Civil Code provides that the ownership of a moveable object is lost when the owner abandons his possession of the object with the intention to dispose himself of the ownership thereof. The consequence being that the object (in any event temporarily) belongs to no-one. (“res derelicta”). Article 5:4 of the Dutch Civil Code provides that the a person who takes possession of a moveable object that belongs to no-one, obtains the right of ownership on it.

The Rotterdam Distict Court held that abandonment of possession with the intention to dispose itself of the ownership is a legal act, and is subject to Articles 3:33 and 3:35 of the Dutch Civil Code. In view of the fact that Sparta had no intention to dispose itself of the ownership (Article 3:33 of the Dutch Civil Code), it needs to be established whether X justifiably relied on Sparta's abandonment of the painting (Article 3:35 of the Dutch Civil Code).

In this regard, the District Court held that it is important to establish whether a person without expertise in paintings would be able to assess that the painting is a special and valuable painting. And in the event such a person would not necessarily consider the painting to be of great value, and assuming X can prove the alleged circumstances in which he said he took possession of the painting, X was justified in relying on the fact that Sparta abandoned the painting with the intention to dispose of the ownership (painting found on a building site, found in a wheelbarrow amidst other materials destined to be thrown out and with a damaged frame).

The District Court furthermore holds that to the extent X would not be able to meet the burden of proof, he will not be able to assert ownership. In that event, he should have notified the police as per Article 5:5 sub 1 of the Dutch Civil Code, in order to make a change to become owner. The District Court ordered X to prove his assertions.

UPDATE 30 November 2011

On 2 November 2011, the Rotterdam District Court rendered a second interim judgment in this case. The District Court has ordered a juducial viewing of the painting for January 2012.