The City of Gotha and Federal Republic of Germany v. Sotheby's and Cobert Finance S.A. was a September 1998 case in the High Court of England and Wales involving the ownership of a Joachim Wtewael painting. The case was the first reported court decision on section 221 of the German Civil Code (Burgerliches Gesetzbuch). This section involves the limitation of proprietary actions when a third party has acquired possession of the property. The case is important in regards to the concepts of statutes of limitation and acquisitive prescription. It also contains a fascinating tale of state art trophies, theft, smuggling, backstabbing and restitution, against the background of major European political events, written by a judge with a sense of humor.
Despite the importance of the decision under both English and German law, it does not appear in any of the official law reports or on BAILII, and the only public report of the case appears in The Times newspaper (9 September 1998). Professor Adrian Briggs of Oxford University has described that omission as "a disgrace". A full copy of the original judgment, initialled by Justice Moses, is here. However, by 5 May 2020, the judgement had made its way onto BAILLI, as had a preliminary hearing relating to disclosure.
Procedural history
The case was a consolidation between an action brought by the City of Gotha against Sotheby's and an action brought by Federal Republic of Germany against Cobert Finance S.A. The Federal Republic of Germany and the city of Gotha both claim ownership of the painting and claim that Cobert converted the painting by "taking constructive delivery of it March 1989, by consigning it to Sotheby's for sale at that time, by offering it for sale through Sotheby's to the City of Gotha in October 1991 and/or by demanding its return from Sotheby's in August 1993".
Background
The Duke Family of Saxe-Coburg-Gotha began to buy paintings in 1656. The Joachim Wtewael painting The Holy Family with Saints John and Elizabeth, the painting involved in the case, was featured in an 1826 catalogue of the family's paintings. In July 1905 an act was created declaring that the art collection was part of the estate of the Duke. On 9 November 1918 the workers' and soldiers' council of Gotha deposed of the Duke and the estate was voluntarily dissolved. In November 1927, by an agreement between the Duke and Land of Thuringia the Duke of Saxe-Coburg-Gotha, the Foundation for Art and Science (Art Foundation) was created with the purpose of preserving the art collection. The most valuable pieces of the Art Foundation were moved to safety at Reinharsbrunn at the start of the Second World War.
After the Second World War, the painting left the collection of the Ducal Family of Saxe-Coburg-Gotha in the city of Gotha. In the 1980s, the painting was arranged to be sold by two art smugglers, Makhin and Greshnikov, to a man named Furst. They arranged the smuggling of the painting from Moscow to West Berlin by Mrs. Dikeni, the wife of the Togo Ambassador in Moscow. She was supposed to deliver the painting to Furst, but did not; and it ended up in the hands of a man named Rohde. The painting was then acquired by Mina Breslav in 1988 and received by Sotheby's on 29 November 1988. The painting was offered for sale and bought by Cobert in March 1989.
Issues in the case
1. Whether the Federal Republic of Germany can establish title to the painting and
2. Whether if it can, its claim is time-barred under the German law of limitation
For the first question to be answered it is needed to find:
1.1 Whether as a matter of fact, it can be established that the painting was in Thuringia in 1945 and 1946;
1.2 Whether title to the painting passed to the Land of Thuringia by virtue of the confiscation police order of 6 July 1945, read with the expropriation Law of 9 October 1945 or, if the painting was still in Thuringia in July 1946, by the operation of the Law of 24 July 1946;
1.3 Whether title to the painting passed to the Land of Thuringia by virtue of the dissolution of the Art Foundation on 14 October 1950;
1.4 Whether an English Court will recognize or enforce the Federal Republic of Germany's title to the painting under German law;
1.5 Whether the arrival of the painting in West Berlin, allegedly via East Germany in 1987 perfects an inchoate expropriation;
1.6 Whether the City of Gotha has a right to possession of the painting.
For the second question to be answered it is needed to find:
2.1 Whether as a matter of fact the painting was misappropriated by a subsequent possessor after it had been stolen from Gotha;