If the law of Italy would be absurd and contrary to the moral code of English law, then there would be the possibility to defer form the general rule, however this was not found. Mr Mummary put forward one further exception to Cammell v Sewell, being that England is justified to determine who has the ownership rights and defer form the rules, to recognise the title of its own system of law returning to the matter that there was no consent for the stolen good to have travelled to Italy, there should be some sympathy for the original owner. They should be allowed to secure their title to goods within their own country.
Although this was held to be one of the strongest points advanced, the issue of securing title for bona fide purchasers, and the legality of the transaction in Italy dismissed this argument also. Other cases that were cited to support the opinion of the court were, the Scottish case of Todd v Armour3, which is a good example of the application of the principles if Cammel v Sewell. This case recognised the rights to property of items that were stolen and purchased in a country where the law, by virtue of a purchase in that country allowed for obtaining legal title.
The stolen goods were also in Scotland at the time of the trial, and it was deemed that the court felt that they were obliged to apply the law of the other nation, even if they did not actually want to. It was the domain of international law, and the principle of lex situs is held. Analysis: The arguments put forward on behalf of the plaintiff were very weak. There were references to an American law case also, where the case was similar and the title was allowed to have been decided in the US, however this case was said to be bad law, and very messily explained, and therefore had no persuasive authority.
The fact that the Italian purchaser held a bona fide purchase title was the defining issue here. There were no grounds to dismiss this claim as the rule of international law state that 'the title recognised by the foreign lex situs overrides earlier and inconsistent titles no matter by what law they may have been created'4. This judgment given therefore reaffirms the rules in Cammell v Sewell which had not been repealed. Conflicts of international law therefore are also of little relevance, as the principle allows for the Italian code to have jurisdiction here.
There were no grounds to say that it was contrary to the morality of the English court, as the law was not 'absurd' at all. In discussing the matter of bona fide titles, it is clear that the English legal system affords more rights as regards to property and ownership rights, than Italy. An English court at the time would have enforced the property rights of Winkworth if jurisdiction was found as sales were not conducted in 'market overt' but private sale. Although England does also protect the rights of bona fide purchaser however, here a limitation period applied before such right would be gained.
Under United Kingdom limitation law, the Limitation Act 1980, the limitation period ceases six years after a good faith purchase. Therefore the conflict of laws is not so great, there are similarities between the two nations, and therefore the difference does not need to be over exaggerated of being great importance. The bona fide purchaser rule as laid down in the Italian civil code of 1153, and 11545 is the valid law where the last transaction took place, and unfortunately for the plaintiff, this is and must be the law applied.
It would indeed cause chaos within international property rights if this did not stand. The English law cannot undermine the law of another nation; otherwise this would be regarded at ultra vires in many ways. Italians have to apply Italian law; otherwise this creates much uncertainty as the property rights and contract rights that they can acquire. However it has been argued at a Departmental Select Committee6 meeting that it is rare that other nations, especially Italy that do not apply the law of their own state.
There is an opinion in England that they are too ready to allow for art objects to be 'lost' to another country. The Italian civil code does have regulations as to the matter in which a person can become bona fide, and these therefore allow the transaction to be valid. The transaction has to be carried out in a manner that is appropriate with regard to documentation and the purchaser has to be unaware of any illicit origin of the goods at the time of acquiring them. This criterion was stated to have been fulfilled.
This law must stand and grant the property rights to the Italian purchaser. As to the discussion of public policy, it can be seen that there is no issue to contest the Italian law as being contrary to public policy. The laws of Italy are not immoral, although unfortunate, it is clear that English law is not so dissimilar. Conclusion: It can be seen that the application of the general principle of international law stands strong in this case. Lex situs is the rule that allows for the case to be regarded as being that of Italian jurisdiction.
This will always be a matter involving movable goods. Property rights of the original owner were forsaken, and it is unfortunate. If this rule were not so grounded it could be argued that they may have had legal title to the property. However it was held a matter for the need of consistency that Italian law be applied. In my opinion however, I would agree with the German proposal that there be no possibility to a bona fide legal title available for stolen art objects within all EEC counties7.
This would be far more favourable in my view as the original owner whose property had the unfortunate circumstance to being stolen should be the only true owner, as the law should be able to protect property rights, and protect against the profits of theft. It is less unfortunate for the bona fide purchaser who has merely purchased something for which they are not entitled to. This is of less importance in my view, to someone who has had objects stolen from them outright.