Taming the Italian ‘Trojan horse’: the a non domino sales of cultural objects

Abstract

Abstract For a long time, scholars have argued that Article 1153 of the Italian Civil Code, regulating the good faith purchase of goods, creates a ‘congenial place’ for buying stolen cultural objects. What is an Italian domestic concern becomes international in international cases where Italian law is found to be applicable. Consequently, both scholarship and case law have looked into the problem and questioned the applicability of the article to cultural objects. This Contribution explores the contours of the norm, explains how it risks playing the role of the ‘Trojan horse’, and then shows why it was essential for the Italian Supreme Court to intervene. In deciding on a case concerning the ownership rights of Peruvian and Chilean cultural property sold a non domino and located in Italy, the Italian Supreme Court upheld the ruling of the lower Court and applied the principles of international public order derived from cultural conventions. Where the application of Italian law, specifically of Article 1153 of the Italian Civil Code was necessary, the Supreme Court strengthened the article's constitutive element of good faith by making hermeneutical use of Article 4 of the 1995 Unidroit Convention on Stolen or Illegally Exported Cultural Objects. The resulting good faith requires a higher level of care on the art-buyer side, a standard that changes depending on the character of the party concerned. Ultimately the Contribution points to the importance of the choice that the Supreme Court made to identify a dynamic bonam fidem to cope with the problems posed by Article 1153 of the Italian Civil Code.