The Appearance of Ownership: Sale of Another’s Property


Chancellor Day Hall NCDH 202, 3644 rue Peel, Montreal, QC, H3A 1W9, CA

The Paul-André Crépeau Centre for Private and Comparative Law is continuing its latest series of Civil Law Workshops under the theme « Les apparences en droit civil », with a talk by Silvia Ferreri (bio) (University of Turin).


The Italian provision corresponding to the French “possession vaut titre” (art. 2279 of the French Code Civil) does not distinguish between stolen or lost goods, and goods entrusted to a person who has failed to keep them in safe custody for the owner (see art. 1153 Italian civil code).

This change occurred in 1942, when a new code replaced the previous one, which was a faithful 19th century reproduction of the French Code Napoleon.

There are some explanations for this innovation (which places Italy in an isolated position in comparison with neighbouring countries in Europe): the distinction was not easily enforced in court, many exceptions applied, and it was not soundly established in the Roman tradition.

The result is unfortunate: Italy has become a privileged market for stolen goods imported from abroad. Switzerland and Germany still distinguish how the goods left the owner’s possession.

There are at least two interesting international cases to mention: French Ministry of Culture v. Italian Ministry of Culture and De Contessini, Cass. 24 November 1995, n. 12166 and Casa della cultura ecuadoriana c. Danusso, Trib. Torino, March 23°, 1982. They reach opposite results as far as the restitution of an illegally imported good is concerned.

Why did the distinction exist previously? We have to go back to the Roman rule (nemo dat quod non habet) and to the competing Germanic rule (Hand wahre Hand): the latter won in the period of the jus commune (prior to the French revolution), and passed into the French codification. But the distinction was never felt strongly in the Romanistic environment, and in 1942 Italy broke away from the rest of the European codifications. Unfortunately the requirement of good faith on the part of the buyer is presumed (according to a specific rule of the Italian code: art. 1147); this puts the burden of proof of the lack of good faith on the shoulders of the plaintiff, and it means that sometimes stolen goods cannot be recovered.

There are some further rules to be considered that introduce some safeguards for “cultural goods” and provide some opportunity to recover them: Codice dei Beni Culturali (D.Lgs. 42/2004, art. 64); 1970 UNESCO convention: Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property  (Paris, 1970); UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, (Rome, 24 June 1995), in force since 1998 (5 ratifications); Council Directive No 93/7/EEC governing the return of  cultural objects unlawfully removed from the territory of a Member State; Council Regulation (EC) No 116/2009 laying down provisions on the export of cultural goods.

About the Civil Law Workshops

For well over a decade now, the Paul-André Crépeau Centre for Private and Comparative Law's “Civil Law Workshop” series has been a showcase for new ideas relating to aspects of fundamental private law in the civilian tradition.

This activity was accredited for 1.5 hour of CLE by the Barreau du Québec (no. 10058265).