BREAKING NEW GROUND IN BELGIUM: HOW LEGAL TRADITION HANDLES TREASURE-FINDS AND PROPOSED REFORMS; Analysis of the existing legal concept, its history and changes to come.
Sometimes, the stories behind the finds are as interesting as the finds themselves: old distrustful gentlemen burying her ladyship's family jewellery in the woods, where the treasure is found only some years later by playing children. (6) The human fascination with treasure which we see reflected in literature and the media is connected to its obscure and presumably untraceable origins as well as to the question (slightly tinged by jealousy) of who should be the rightful owner. The reader will ask himself: who was the original owner of the treasure? Why did he hide his property? Is it right for the finder to keep the treasure? Or should the owner of the land in which the treasure was found be the lucky new owner? Shouldn't the State be the new owner, in order to protect, preserve, research and exhibit the often ancient and scientifically significant objects? Both the finder and the landowner would acquire ownership out of mere luck after all--unacceptable for many in a society accustomed to meritocratic ways of thinking.
But what exactly is a 'treasure'? Can a forgotten or abandoned object in the attic be a treasure or does it need to be buried to fall within the definition? What is the difference between (organised or unorganised) archaeological excavations and treasure finds? All these questions gain importance from a legal point of view as well, because they provoke conflict (which is, in the end, the material for any good novel, newspaper article or lawsuit) and they need to be answered in a way acceptable for everyone involved in the find (original owner, finder and landowner) and society as a whole (State).
As always, there are different ways of answering these questions. This becomes evident in Belgium, where an age-old system of solving problems related to treasure finds, rooted in Roman law, may soon be replaced by a new, wholly different approach. Whether this new approach, part of the reforms of Mr Koen Geens, Minister of Justice in the Michel Government, (7) is capable of resolving some of the problems of the old system or whether it is simply likely to create new ones will be discussed in the following sections.
Firstly, we will discuss the old legal system concerning treasure and its historical context. Secondly, we will present the new Civil Code project in relation to treasure. Finally, we will compare the old and the newly proposed concepts in order to indicate improvements as well as the problems which may be anticipated.
OLD CONCEPT OF 'TREASURE'
The longstanding fascination of the general public with finds of hidden treasure is matched by legal attempts to treat it in a fair and just manner which can be traced back to Roman times.
The legal regime applicable to finds of treasure in most European countries and its respective international offshoots is based on a legal concept known as 'Hadrian's Division'. This concept says that if a treasure has been found accidentally, it belongs half to the finder and half to the owner of the land. This solution is based on a decision made by Emperor Hadrian which was later confirmed in constitutions by the Emperors Leo and Zeno (8) and was furthermore reported in the Historia Augusta and, in more detail, in the Institutions: (9)
Thesauros, quos quis in suo loco invenerit, divus Hadrianus naturalem aequitatem secutus ei concessit qui invenerit. Idemque statuit, si quis in sacro aut in religioso loco fortuito casu invenerit. At si quis in alieno loco non data ad hoc opera, sed fortuitu invenerit, dimidium domino soli concessit. Et convenienter, si quis in Caesaris loco invenerit, dimidium inventoris, dimidium Caesaris esse stauit. Cui conveniens est, ut, si quis in public loco vel fiscali invenerit, dimidium ipsius esse, dimidium fisci vel civitatis. (10)
While there are variations in some of the details, for example, the precise definition of treasure, the solution found by Hadrian's Division remains nearly unchanged in many Civil Codes around the world. It is still present in the French family of law (e.g. France, Article 716 Code Civil; Belgium, Article 716 Code Civil/Burgerlijk Wetboek; Italy, Article 932 II Codice Civile; Spain Article 351 Codigo Civil) and the Germanic family of law (eg. Germany, [section] 984 Burgerliches Gesetzbuch; Austria [section] 399 Allgemeines Burgerliches Gesetzbuch; Greece, Article 1093 [phrase omitted]; Japan, Article 241 [phrase omitted]; South Korea Article 254 [phrase omitted]).
However, this general rule has always been subject to modification. At various points during the Middle Ages, Roman law ceased to be applied and local laws gained importance, themselves often based on faded memories of Roman law. The so-called Sachsenspiegel, (11) a code of laws written by Eike von Repgow between 1220 and 1235 in what is now Northern Germany stated that everything lying in the earth deeper than the plough reaches belongs to the king. (12) A treasure find above this level would have been subject to Hadrian's Division. The codification gained huge importance in Central and Northern Europe and influenced legal practice in the Netherlands (including the biggest part of the Southern Netherlands, which is nowadays Belgium), (13) at that time still part of the Holy Roman Empire. The Sachsenspiegel s provision reflects the feudal system of the Middle Ages and led to the so called Bergregal or Ius Regale Montanorum, the right of ownership of untapped mineral resources, which belonged to one of the several feudal lords and not to the owner of the land. (14) It is impossible to completely reconstruct in detail the legal situation concerning Hadrian's Division and the Ius Regale in the territory of what is today's Belgium because even under uniform Spanish and Austrian Rule in the sixteenth to eighteenth centuries the legal system remained highly fragmented and based on local traditions. (15) However, according to the Dutch jurist Hugo Grotius (1583-1645), as the feudal system spread across Europe and the prince was looked on as the ultimate owner of all lands, his right to claim title to treasure trove became ius commune et quasi gentium (16) (a common and quasi-international right) in England, Germany (including the Netherlands and parts of what is now Belgium (Brabant, Limbourg, Luttich, Luxembourg)), France (including Flanders, Henneau and Namur in what is now Belgium), Spain and Denmark. (17)
This tradition, deeply rooted in the feudal system, seems to be gaining popularity once more. This can be seen, for example, in recent legal approaches in Germany and France. In Germany, concerning treasure finds, [section] 984 of the more than 100-year-old German Civil Code (Burgerliches Gesetzbuch) (18) is theoretically still strictly based on the principle of Hadrian's Division. However, Article 73 of the German EGBGB (Introductory Law to the Civil Code) contains an enabling clause for the federal states to establish laws organising the treatment of treasure-finds differently. This clause is called Schatzregal or ius regale and all German federal states except Bavaria took the opportunity to create laws granting themselves ownership of more or less all treasure finds. (19) Therefore, the provisions made in [section] 984 BGB are no longer of any importance in practice: Hadrian's Division has been largely substituted by the ius regale. In France, reforms led to a similar result as Article L541-1 of the Cultural Heritage Code (Code du Patrimoine) provides:
The provisions of article 552 of the Civil Code concerning the rights of the owner of land do not apply to immovable archaeological remains. The State pays to the owner of the property where the remains are found an indemnity designed to compensate for the harm caused in gaining access to the remains. In the absence of agreement, a claim for compensation is brought before the judicial [not administrative] judge. (20)
The territory of what is nowadays Belgium has always been a meeting point between German and French culture, including the respective legal systems. As has been shown above, over many centuries the legal systems of the Northern and Southern Netherlands (the latter being today's Belgium) were influenced by the law which applied throughout the territories which now comprise modern day Germany. This included the principle of Hadrian's Division, but also its limitation through ius regale. Under the liberal influence of the Napoleonic Code, (21) the model for the Belgian Civil Code, Hadrian's Division regained unrestricted importance and is codified in Article 716 of the Belgian Civil Code. The provision in the Code is supplemented by administrative acts which impose certain restrictions but which do not affect the principle of division between the landowner and the finder as such, but which impose obligations in relation to objects of archaeological interest, such as mechanisms of conservation and scientific research. The various Heritage Decrees, which differ from the German ius regale, do not lead to expropriation of finds, but merely lay down restrictions and obligations on the owner of archaeologically important finds (which is only one type of treasure). No other legislation in Belgium, either at the federal or regional level, affects the system of determining legal title to treasure or res derelictae, a legal construct similar to treasure, which will be explained below. Thus, the recently rewritten Article 5.1.4, from January 2017, of the Flemish Immovable Heritage Decree, (22) which sets out the administrative regime relating to archaeological chance finds, is no doubt applicable. However, this provision does not deal with the question of who can claim ownership of an archaeological find, and leaves scope for the traditional ownership rules, as explained above, to establish the legal consequences for the finder of archaeological objects. The Decree aims to provide the same standards of preservation for chance finds as for objects found in a scheduled excavation. To that effect, Article 5.1.4 imposes a reporting duty within three days of the discovery and an obligation to allow conservation measures and expert examination within a ten-day period. Article 5.2.1. also imposes a duty to conserve archaeological finds and to make them accessible for scientific research. It is clear, however, that even if this provision does not seek to derogate from the traditional ownership system, it does place restrictions on the owner's ability to exercise his ownership rights to the fullest extent.
In brief: until now, the only law in Belgium relating to finds of treasure was the one based on Hadrian's Division. Title to treasure was divided between the finder and the landowner. To satisfy public interest concerning conservation of archaeological finds, some complementary rules are established without modifying the distribution of property between the landowner and the finder. There is no ius regale, since the distribution of property is not affected. This compromise between pure Hadrian's Division and ius regale seems to satisfy all interests: the finder and the landowner share title to the treasure and public interest is satisfied by administrative laws assuring the preservation and research of the find.
As a starting point, the Hadrian's division is based on the presumption of the existence of a treasure. However, this presupposes that we know what is meant by a 'treasure'. If we recall the examples from the novels and newspaper articles cited above, it seems to be clear what a 'treasure' is: an accumulation of valuable objects sealed in a chest. But there are cases that are slightly different from this archetypical idea of a treasure. What about the old porcelain found in the long-forgotten cellar-room in Antwerp? It is neither precious metal nor stored in a chest nor buried. But it is a 'treasure' in the sense of Article 716 Belgian Civil Code. The line drawn between treasure and non-treasure is somehow arbitrary. This becomes clear if we compare the German and the Belgian definitions of treasure. [section] 984 BGB states that a treasure is an invisible object that had remained invisible for such a long period of time that it had been forgotten. The object is not treasure, therefore, if it is visible (e.g. a valuable painting that had been thrown on the street to be collected as junk, which would be a res derelictae). If someone is still aware of the existence of the object, it is not a forgotten object and therefore not treasure under German law. The Belgian definition of treasure is based on a slightly different approach. The intention of the original owner is decisive in order to differentiate treasure from similar concepts with different legal consequences. (23) This leads to the following system of treasure, res derelictae and wreck (epave / wrak):
If the original owner intended to retain ownership by hiding or burying the object, the finder acquires title subject to the condition that the original owner remains unknown. If the latter reappears within 30 years (after which the finder gets undisputed title through prescription of 'usucapio', under Article 2225 of the Civil Code) and can prove his ownership, the finder must return the object. Article 716 applies (treasure).
* If the original owner threw the object away in order to get rid of it, the object becomes res derelictae and the finder acquires full, unconditional title, provided the original owner's intention to divest himself of the object is sufficiently clear.
If the original owner intended to retain ownership but lost the object, it is considered an epave in French, or wrak in Dutch, which literally translated, means 'wreck', revealing its nautical origin, but now applied in the broader sense. The discovery of a 'wreck' is governed by the Act of 30th December 1975. (24) This states that the finder of an epave/wrak needs to bring the object to the municipality where it will be stored for six months for the owner to collect it. After this period of time, the municipality will gain ownership of the object.
The New Civil Code-Project: What does it say about Treasure?
In the proposed Article 3.74 of the new Belgian Civil Code (25) the historically-established Hadrian's Division is still used: the finder acquires title if he finds the object in his own ground. Otherwise, ownership is split between the owner of the ground or of the container in which the object is found and the finder. However, this ancient system is now modified. In addition to the already existing requirement that the item has to be found by chance, the finder acquires title only if: 1) he is entitled by a personal or real right to use of the ground / container, which is the case if he rented the ground or the object in which the treasure is found, (26) and 2) he has respected the provisions laid down in Article 3.73, which are a) that he made serious efforts to find the owner ([section] 1, 1st sentence) b) that he reports the find to a municipality ('commune') within the seven days following the discovery ([section] 1, 2nd sentence).
Again, a distinction must be made between treasure, for which the above-mentioned rules apply, and other kind of finds. But, unlike the above-mentioned old system of definitions used to differentiate between res derelictae and treasure, which mainly depend on the intention of the original owner, it is now based on objective criteria: the finder needs to make serious efforts to find the original owner and he needs to report the find to the municipality.
With regard to the ways in which title to finds may be acquired, Article 3.74 [section] 1 states that the original owner of a found object remains the owner and can regain ownership by addressing himself to the municipality. If he does not do so within five years of the date of the find, the finder acquires title to the object provided he informed the municipality within the prescribed seven-day limit.
Article 3.74 [section] 2 states that if there is no owner at all, the finder acquires title immediately if he has observed the conditions laid down in Article 3.73. At first sight, this provision is difficult to understand from a practical point of view since there can be no certainty about the the identity of the original owner at the very moment when the finder discovers the object: he would have to wait until the five-year limitation period has passed before he can be certain about his ownership. The practical relevance of the provision must be questioned since there are very few objects that can truly be considered to be ownerless, and even fewer objects for which this characteristic is obvious to the finder.
Article 3.74 [section] 3, finally, establishes rules for objects enclosed within a container or in the ground, and which are ownerless.
The new provisions differentiate between finds, or 'troves', with an owner and 'troves' without one. Unlike the old system, these provisions do not consider the intention of the owner. If there is an owner, but he does not recover the object within five years (which would be the comparable situation of an epave/wreck), new title can be acquired by the finder. Rather than evaluating the intention of the original owner, the intention to waive his ownership is presumed after five years, thereby improving legal certainty. If there is no owner and the object was not concealed, then the finder gains title immediately (which would be the comparable situation of res derelictae). If there is no owner and the object was concealed, then the finder and the owner of the container/land each gain half of the rights in the object, subject to certain conditions. The intention of the original owner as a factor to be assessed in determining ownership is replaced by objective criteria such as a limitation period following which title can be acquired on the one hand and the existence of an owner on the other. Even if it remains difficult to prove that there is no owner, this is far easier to prove than the intention of the original owner.
The essential element of this new system is the obligation to report the find to the municipality. By doing so, the find gains publicity and the original owner can react accordingly, protecting his ownership rights. This justifies the application of the five-year limitation period, which is sufficient time for the original owner to assert his ownership. Furthermore, it provides the necessary legal certainty about the legal position of the trove by establishing a definitive new title in favour of the finder after five years.
PROS AND CONS OF THE NEW AND THE OLD SYSTEMS
As has been shown, the main problem under the old system is its lack of objectivity which places the finder in the rather difficult situation of having to prove the intention of the original owner. It is this intention which determines whether the finder may keep the trove as its sole new owner (res derelictae) or whether he acquires title to only half the trove (treasure). But how does one prove the intention of an owner, who in many cases may not even be alive? How does one prove the intention of a person who, in many cases of treasure finds, has been dead even for many centuries? (27)
The proposed new system seems to be capable of resolving this problem by objectifying the necessary requirements for acquiring title. Instead of drawing on the intention of the original owner, the new system distinguishes between cases in which there is an identified original owner and cases in which there is none; between cases in which the trove was concealed in the ground or in some other object and cases in which it is not. It also sets a limitation period for those cases in which the owner is unknown and those where the trove was not hidden. It is this last case which is likely be the most contentious since there is not only awareness of an owner, who might simply have lost the object unintentionally (e.g. on the street), but also an interest in resolving the pending attribution of ownership. It is therefore necessary to give the original owner the opportunity to learn about the whereabouts of his property so he can reclaim it: the establishment of a system of public registration for all finds is a necessary means of seeking to ensure that information regarding the find can reach the owner.
However pragmatic this new approach appears at first sight, it only seemingly resolves the above-mentioned problem of lack of objectivity and creates a series of new problems of a technical and practical nature instead.
Firstly, the introduction of what appears to be objectivity is undermined by the fact that the key characteristic of all cases is the existence or lack of ownership. If there is no owner, the finder will immediately acquire title (Article 3.74 [section] 2). But how can we know if there is an owner? On the one hand, the possibilities for objects to fall through the tightly knit net of property attributions are very limited and no practical example comes to mind. (28) If there is any example at all, the lack of ownership would be far from obvious to the finder, so that while he may well gain immediate title in theory, in practice he would not even be aware of it so that the five-year limitation period established by Article 3.74 [section] 1 would apply as the secure way to gain ownership. If the legislator, on the other hand, is referring to those cases in which the original owner has clearly abandoned the object, then the question has to be asked if it really was his intention to relinquish his ownership. If again the original owner's intention is decisive for the legal consequences, then the problem regarding the lack of objectivity has merely been transferred. Furthermore, this solution would contradict the first sentence of Article 3.74 [section] 1, that states unambigiously that the trove continues to belong to the original owner. In practice, the solution for these cases will in practice be the application of Article 3.74 [section] 1 with its five-year limitation period. Given this observation: what is the purpose, then, of Article 3.75 [section] 2? The problem repeats itself in the context of treasure-finds (Article 3.74 [section] 3). Again, the lack of an owner is a conditio sine qua-non for the property attribution of the object following the principle of the (restricted) Hadrian's Division. Where should this object, lacking an original owner, come from? How did it end up concealed in the ground or in another object otherwise than because this was the intention of an original owner trying to protect it by hiding it? The system in this case ends up in a contradiction: the first sentence of Article 3.74 [section] 1 states that the trove continues to belong to the original owner. Article 3.74 [section] 3 applies to objects that are lacking an owner (which because of Article 3.74 [section] 1 has to be interpreted as 'original owner'), but the fact that the object is concealed in the ground or within another object is indicative of an intention on the part of an original owner. Even if this original owner is unknown, there must have been one; otherwise the object would not have been deliberately concealed. Therefore, the object is not ownerless and therefore Article 3.74 [section] 3 cannot apply.
We should also note certain inconsistencies between Article 3.74 [section] 1 and Article 3.28 of the new Civil Code. The latter provision states that a person acquires immediate title if he is in good faith and if the object has been given to him by someone who had a right of possession (e.g. he rented the object). (29) If the person is in good faith but the object has been stolen or lost, he acquires unconditional title if the original owner does not reclaim his property within three years. A person in bad faith is able to acquire title only through usucapio after 30 years (Article 2225 old C.C.; Article 3.27 new C.C.). Article 3.74 [section] 1 seems to create a third kind of 'faith' or belief somewhere between good and bad faith, because the finder, even if he is in good faith, does not acquire title immediately or after three years, but after five years only. It has to be asked if this differentiation is justifiable, because if good or bad faith is the only mechanism to allow the new attribution of ownership after a certain timespan or another, what is it then that is so different between the finder of an object and the buyer of a rented object with regard to their good or bad faith? The legislator seems to imply that the finder of an object needs to be treated with more suspicion regarding his belief as to who is the true owner of the object than for example the buyer of an object. But if you have reason to be suspicious, you are already in bad faith, so there seems to be no scope for differentiation. Furthermore, the only way to be suspicious about the trove is to know the original owner. In this case, Article 3.74 would not even apply, because if you know the owner, then you would have been able to find him in accordance with Article 3.73. If you did not find him, you did not search 'reasonably' enough. If you don't know the original owner, then there is no reason to be suspicious about anything other than the fact that you could presume that there had been an original owner at some point. If this is enough to prove the finder's bad faith, then Article 2225 of the old Code Civil should apply immediately. In the more likely case that there is no way of proving this, the finder is in good faith and should therefore enjoy the same privileges enjoyed by any other good faith purchaser. You can either be in good faith or in bad faith, but not 'goodish-faith' or 'badish-faith'.
Secondly, this provision of the new Code Civil also leads to several practical difficulties. As described above, the new system requires the finder to comply with the obligations created by Article 3.73. He needs to "seriously (30) try to find the owner" and, if he does not find him, he must "report the trove to the municipality of his choice within six days". The trove will then be registered and stored by the municipality, so that the owner is able to reclaim his property (Article 3.73 [section] 1). Observing these steps is required for all forms of troves (Article 3.74 [section][section] 1-3) and is the only way for the finder to acquire title. The intention of the legislator is to ensure that the municipality maintains a record of the troves and, by making them public, to avoid theft or other forms of dispossession. This is necessary in order to provide the essential certainty that the owner does not want to reclaim his property before the new attribution of property to the finder after five years. While this system (partly) provides the necessary objectivity to enable the new attribution of property to the finder without requiring that the latter prove the intention of the original owner, it also creates a significant amount of administrative work and expects the nowadays notoriously underfinanced public sector to pay for it. While in some cases this procedure seems to be appropriate, for example in cases where substanital material or emotional value is involved, this is certainly not the case with less valuable objects of the kind that are normally found on the street and which are expected to be the biggest group of troves.
The size of the administrative burdens leads to another practical problem: are potential finders even aware of the steps which they are required to follow if they find an object? Since the legal system has been different in the past, it will be for the Government to raise awareness of the changed system and the obligations that are now incumbent on them. Further costs are to be expected and the positive result of such a campaign remains to be proved. And furthermore: once awareness is there, will people still care about picking up lost or abandoned objects in the street, if they know that this will lead to a series of problems that they can easily spare themselves by just ignoring the abandoned goods or by taking them for themselves secretly? What if the finder has to fear interrogation or prosecution because by reporting the find he could be considered suspicious? The stimuli to report a find will be even less.
Treasure finds are surely one of the more exotic parts of legal practice, but they are also sufficiently fascinating for the general public to be featured constantly in the media and literature. The legal treatment of treasures is deeply rooted in local traditions and the principle of Hadrian's Division remains the most important solution for the re-attribution of ownership of suddenly and fortuitously found valuable objects in Belgium and most other European countries. This exemplifies not only the antiquity of the problem but also the widespread acceptance, throughout the ages, of the principle that ownership of a treasure should be divided between the owner of the land in which the object is found and the finder. In many European countries, e.g. Germany, France and Belgium, this principle has been subject to drastic changes and modifications in recent years. While some of the newly established laws are of administrative character and seek to protect and allow for the study of the often scientifically relevant finds without changing the attribution of title in civil law, some reforms, such as the new Belgian Civil Code project, will change the age-old system altogether. While the reformer's positive intention to protect cultural heritage can be achieved by establishing obligations towards its owner, hence making an attribution of property to the State unnecessary, intentions to simplify the existing and admittedly complex legal system of treasure finds are in vain if they substitute it with another complex legal system, presumably not simpler to handle in practice than the old one. In both cases, acceptable solutions will depend on a reasonable assessment in the particular circumstances of the case, so why not keep the old system and the associated long-established and accepted case law?
(1) <https://www.bbc.co.uk/news/uk-wales-47072503>. In Feb. 2019 the UK Department for Digital, Culture, Media and Sport (DCMS) announced the opening of a consultation on a series of proposed amendments to the Treasure Act 1996 and its associated Code of Practice: see Rebecca Reynolds, IAL Blog, 13 Feb. 2019: </ial.uk.com/consuItation-opens-to-amend-treasureact-1996/>.
(2) Martina Rathke: 'Fund in Vorpommern. Archaologen heben Silberschatz aus dem Fruhmittelalter', in Spiegel Online, 5 Sept. 2010: <http://www.spiegel.de/wissenschaft/mensch/ fund-in-vorpommern-archaeologen-heben-silberschatz-aus-dem-fruehmittelalter-a-715765.html>.
(3) Jack Rosser: 'Hotel MouSa! Tottenham star Dembele Discovers Lost Treasure Worth 1m [pounds sterling] in Basement', Evening Standard, 15 Dec. 2017: <https://www.standard.co.uk/sport/football/ tottenham-news-spurs-star-mousa-dembele-finds-lm-treasure-in-hotel-basement-a3720861.html> and see Lucie Lambrecht, IAL Blog, 10 July 2018: <https://ial.uk.com/an-archaeological-find-ina-footballers-cellar/>
(4) Geoffrey Bennett, 'Striking Gold: the Case of the Shropshire Piano' (2018) XXIII Art Antiquity and Law 269.
(5) In March 2019 the confectionery firm Cadbury's urged children to get a metal detector and search for their own archaeological treasures, listing a series of known archaeological sites in England, Northern Ireland and the Republic of Ireland where "treasure is fair game". Unfortunately, those behind the campaign were woefully unaware of the various ways in which treasure hunting is controlled, and 'treasure' protected, under English law: see Rebecca Reynolds, IAL Blog, 27 March 2019: < https://ial.uk.com/cadburys-freddo-treasures/>.
(6) Other examples of such stories have been summarised by Annie O'Riley: Buried Treasures. <http://www.oddhistory.com.au/gippsland/buried-treasures/>. For a comparable case in Germany, see Rheinische Post Online: Kinder finden Goldschatz. Eigentumer meldet sich undzahlt Belohnung, 3.Feb. 2017: <https://rp-online.de/panorama/deutschland/ kinder-finden-goldschatzeigentuemer-meldet-sich-und-zahlt-belohnung_aid-19197937>.
(7) Now in 'current affairs' following the latest government crisis.
(8) C. 10, 15, 1, a. 474.
(9) Inst. 2,1,39.
(10) Quoted from Peter Birks and Grant McLeod in Peter Birks, Grant McLeod and Paul Krueger (eds): Justinian's Institutes. (Cornell University Press, New York 1987), p. 58: English translation; Ibid., p. 59: "The emperor Hadrian, deciding in accordance with natural justice, allowed treasure found by a man on his own land to go to the finder, with the same ruling for chance finds on sacred or religious land. For a find on land of a private owner, so long as the treasure was found by chance and not by deliberate search, he allowed the owner half; and, correspondingly, for a find on imperial property he ruled that half should go to the finder and half to the emperor. A natural extension for a find on public or fiscal land gives half to the finder and half to the exchequer or to the town."
(11) Sachsenspiegel translates literally as 'Mirror of the Saxons' and should be understood as a reflection of the existing local customs that had gained the status of law. For further reading, see Karl Kroeschell, 'Der Sachsenspiegel im neuen Licht', in Heinz Mohnhaupt, Rechtsgeschichte in den beiden deutschen Staaten (1988-1990), 1991.
(12) Hans-Christoph Hirsch/Eike von Repgow, 'Sachsenspiegel, Landrecht' in Johannes Weidemann (ed.), Schriften der Hallischen Wissenschaftlichen Gesellschaft. Vol. 3, 1939. Modern German translation of the passage: "Alle Schatze, die tiefer unter der Erde begraben sind als ein Pflug geht, gehoren der koniglichen Gewalt."
(13) Uwe Wesel, Geschichte des Rechts. Von den Fruhformen bis zur Gegenwart, (C.H. Beck, Munchen, 2006), p.323.
(14) Ibid., p. 303.
(15) Dirk Heirbaut, 'The Belgian Legal Tradition. Does it Exist?', in: Hubert Bocken and Walter De Bondt (Hrsg.) Introduction to Belgian Law. (Kluwer Academic Publishers, London 2001), pp. 1-22.
(16) Hugo Grotius, 'De iure belli ac pacis, 2, 8, 7', In Inleiding tot de hollandsche rechtsgeleerdheid, Graven-Haghe 1631, p. 18.
(17) Ivan Siklosi, 'Treasure Trove in Roman Law, in Legal History, and in Modern Legal Systems. A Brief Summary', in Journal on European History of Law, 6/2; pp. 97-102, p. 101.
(18) In development since 1881, it became effective on 1 Jan. 1900,
(19) [section] 15 Denkmalschutzgesetz (in the following: DschG) Schleswig-Holstein; [section] 13 DschG Mecklenburg-Vorpommern; [section] 18 DschG Niedersachsen; [section] 17 DschG Hamburg; [section] 19 DschG Bremen; [section] 12 DschG Brandenburg; [section] 12 DschG Sachsen-Anhalt; [section] 3 DschG Berlin; [section] 17 DschG Nordrhein-Westfalen; [section] 25 DschG Sachsen; [section] 17 DschG Thuringen, [section] 24 DschG Hessen; [section] 20 DschG Rheinland-Pfalz; [section] 23 DschG Baden-Wurttemberg; [section] 14 DschG Saarland.
(20) For further reading, see Ruth Redmond-Cooper, 'Hidden Treasure and Forgotten Dreams. The Ownership and Exploitation of Cave Art', in (2018) XXIII Art Antiquity and Law 253.
(21) Enacted in 1804.
(22) Applicable in the Flemish Region.
(23) As Sophie Boufflette puts it in her penetrating article about the complex Belgian system of treasure and similar concepts: "La dissimulation [as a requirement of a treasure] doit-elle en outre etre volontaire? La volonte, encore et toujours. Notion omnipresente en cette matiere, elle semble etre la cle de bien des enigmes. C'est elle [...] qui permet de distinguer un tresor d'une chose abandonnee ou d'une epave." Sophie Boufflette: 'A l'attention des proprietaires distraits ou negligents. Le sort des objets trouves au regard du droit des biens' ('Warning to Forgetful or Negligent Owners. The Fate of Lost and Found Objects in the Law of Property'), (2008) Revue Generale de Droit Civil Beige / Tijdschrift voor Belgisch Burgerlijk Recht, pp. 157-164. Trans.: "Is it necessary [as a requirement of treasure] that the concealment should have been intentional? Intention, time and again. An ever-present concept in this area, it seems to be the key to many puzzles. It is intention which allows us to make a distinction between treasure on the one hand and abandoned property or a wreck on the other."
(24) In French/Dutch: "Loi concernant les biens trouves en dehors des proprietes privees ou mis sur la voie publique en execution de jugements d'expulsion / Wet betreffende de goederen, buiten particuliere eigendommen gevonden of op de openbare weg geplaatst ter uitvoering van vonnissen tot uitzetting".
(25) The part of the Civil Code treating matters of property law was approved by the Council of Ministers at its second reading on 25 Oct. 2018. Since 5 Nov., the text has been available at <www.lachambre.be>.
(26) In French/Dutch: "titulaire d'un droit personnel ou reel d'usage / een persoonlijk of zakelijk gebruiksrecht".
(27) The question of determining the intention of the original owner was one which gave rise to problems under the old law of treasure trove in England and Wales and was one of the factors leading to reform of this law and the enactment of the Treasure Act 1996. See Roger Bland 'Treasure Trove and the Case for Reform' (1996) I Art Antiquity and Law 11, and Clive Cheesman 'Religious Offerings and the Intention to Recover in the Law of Treasure Trove' (1996) I Art Antiquity and Law 27.
(28) The first sentence of Art. 3.74 [section] 1 states that a lost object continues to belong to the original owner. Examples of objects that are lacking an original owner are therefore those which never belonged to anyone. Since everything on earth, at least nowadays, tends to have belonged to someone at some point, be it a civil person or a State, by law of succession or Active claim or on a contractual basis, in natura or as a fruit of something else, examples may be of extra-terrestrial origin, from the depth of international waters (and even here international maritime laws apply to effect the attribution of treasures) and maybe from Antarctica, which by international contract does not belong to anyone, maybe exactly because there is not much there in the icy desert that could belong to anyone.
(29) Article 3.28 mirrors current Art. 2279 and following of the Civil Code relating to the possession of chattels, which enacted the old adage: "possession vaut titre".
(30) It also remains opaque, what is to be understood as "seriously" (French: "raisonnablement" or Dutch: "redelijkerwijze"), but at least in this case future case law will provide the necessary criteria.
Lucie Lambrecht* and Zacharias Mawick ([dagger])
* Advocaat/avocat at Lambrecht Law Office, Brussels Area, Belgium,
([dagger]) Legal Researcher at Lambrecht Law Office, Brussels Area, Belgium.
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|Author:||Lambrecht, Lucie; Mawick, Zacharias|
|Publication:||Art Antiquity & Law|
|Date:||Apr 1, 2019|
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