Towards a Rigorous Standard for the Good Faith Acquisition of Antiquities

Abstract:     
When antiquities are acquired without a rigorous due diligence process, that acquisition defrauds our heritage by distorting the archaeological record; causing potential harm to other legitimate acquisition of antiquities; perverting the important role museums play in society; and ultimately warping the understanding of our common cultural heritage. Fraud occurs when a defendant intentionally deceives another. Given the flood of scandals plaguing museums, collectors, and dealers, we can state now with some confidence that many of these individuals have committed a fraud on our collective human heritage.

Combating this fraud is particularly difficult. Though an existing body of law prohibits and punishes a variety of activities which further the illicit trade, these measures are severely hampered by the mystery surrounding antiquities transactions. With increased scrutiny and a more rigorous and diligent title enquiry by buyers and sellers, these legal measures will become far more effective. At present, details regarding authenticity, title, or even more basic questions such as the origin of an object are intentionally hidden and disguised from public view.

Good faith has been used to merely promote commercial convenience and economic efficiency. This article proposes a new theoretical foundation for increased scrutiny of the antiquities trade by constructing a broad basis for the recognition of good faith as a mechanism for eliminating the illicit trade in antiquities. This article articulates three ways in which good faith can play a meaningful role in the trade and transfer of antiquities by examining fraud, limitations periods, and public pressure generally. A strong case for reform can be made if we consider that a family of art forgers living in modest public housing in Bolton, England can easily fool some of the World's leading cultural institutions.

Keywords: art, antiquities, law and economics, cultural heritage, cultural property, property, movable property, international law, private law, comparative law,

Working Paper Series