The facts of the matter are as follows:
Mrs B, a talented amateur painter, is gifted a landscape painting by Mr D, a struggling artist whom she is assisting financially. When Mr A becomes more successful, he publicly denounces private patronage and makes disparaging comments about women artists generally. In an act of revenge, Mrs B paints a portrait of her neighbour, Mrs C, over the gifted painting, unaware that her husband has already agreed to sell it to Mr T. When Mr T comes to collect the painting by Mr D, it cannot be found and is declared lost by both Mr T and Mr B. On Mrs B’s death, all her artworks are gifted to the local art gallery by her husband. Mr D went on to become a very collectable and sought after artist. Forty years later, Mrs B’s son asks to purchase the portrait of Mrs C as he has none of his mother’s work, and as they need funds for urgent renovation works, the gallery agree. Unfortunately, during the removal at the art gallery, the painting is damaged and the vandalism – and previously lost painting by Mr D – is discovered. What is the status of the painting and to whom does it now belong?
This is, in fact, the subplot of an episode of the Australian crime drama, Dr Blake’s Mysteries, and so far as I am aware is completely fictitious. It is, however, an interesting little conundrum and one, I think, that is perhaps not entirely unknown in the art world; I recall some years ago a news report about an elderly lady possessing a tea tray made by her late husband from a previously lost Picasso. The poor dear had no idea what she’d been setting the custard creams on. Anyway, back to the question in hand.
There are a number of points to be considered:
1. The initial act of vandalism
2. The sale to Mr T
3. The bequest to the art gallery
4. The discovery of the original painting
5. The purchase by Mrs B’s son.
Firstly, we need to look at the initial act of vandalism. It would appear from the facts stated above that at the time of the gift, Mr D had little money and either gave the painting as a gift or Mrs B purchased it from him – either way, at the time of the vandalism the painting is hers to do with as she sees fit. If she wants to punch a hole through it, that is entirely for her. The painting is her property. So the act of painting a portrait over a valuable landscape could be seen as foolish on her part, or a smart two fingers to the art establishment who refused to recognise the merits of her own work and to the artist she supported who so ungraciously turned upon her. There is the plot for a novel, at least, but brings us no further in this enquiry.
The sale to Mr T brings about the first of the questions raised by this matter. Unless Mrs B gave her husband explicit instructions to sell the painting on her behalf – and the facts appear to suggest that the painting was sold without her knowledge – then the sale is void. The painting is not Mr B’s to sell and he cannot legally take Mr T’s money. There is a bit of a quibble here, and that is that at the time the vandalism took place, it was c. 1915 and it may be that many men felt that their wife’s property was their own, despite the Married Woman’s Property Act of 1865. If a receipt for the sale to Mr T can be found, then he may have a claim for restitution or compensation against Mr B’s estate, unless it can also be shown that Mr T received a refund of his money with the painting could not be found. However, I expect that any such claim to recover the debt would now be statute-barred due to the passage of time and it may be better for the families to either cut their losses or come to a separate arrangement.
The bequest to the art gallery on Mrs B’s death of all her artworks does not appear to be in question. The facts stated above do not state explicitly whether this was a term of her Will, but if not, as a respected local artist I am sure the gallery would have taken at least a few paintings. From then on, the gallery becomes the legal owner of all Mrs B’s artwork and can deal with it as they see fit, and four decades later, a sale is agreed with Mrs B’s son.
However, in removing the painting from the gallery in order to transfer it to its new owner, the portrait is damaged and it is at this point that the gallery discover not only Mrs B’s vandalism but the potentially priceless painting underneath (now possibly damaged beyond all repair). It would be impossible to prosecute Mrs B for criminal damage or Mr B for fraud, as both parties are now long dead. Mr T or his family, if he had also died, could no longer enforce the sale agreed with Mr B for the original painting, due to passage of time, although it might be possible to bring a claim using similar legislation to that used to return artworks stolen by the Nazis to the descendants of the original owners, especially if they can prove that Mr T paid money that was not reimbursed when the painting could not be found. It would be left to Mrs B’s son and any descendants of Mr T to come to an arrangement between themselves and with the gallery.
This state of affairs would put the gallery in a very awkward position – one artefact, containing two paintings, each painting with a different owner and each owner wanting the painting, with no way of separating the two to satisfy both parties. If it were me (and I’m delighted that it’s not, this is a minefield), I would formulate a sale agreement for the painting to Mrs B’s son, giving Mr T’s family the right of first refusal in the event of a future sale. That way, the gallery are guaranteed the agreed funds and, essentially, pass the buck for another day. Mrs B’s son gets the painting that he wants, and Mr T’s family know that they have a lien on a potentially valuable painting if it can ever be restored to its former glory. So far as it is possible, everyone would be happy.
Whether or not this is what happened at the end of that episode of the Doctor Blake Mysteries is anyone’s guess; the script didn’t elaborate on it, but Dr Blake did come home with his mother’s painting. But it is a fascinating question and would definitely merit closer research and scrutiny. I expect to see it on a law exam paper at some point in the future.