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Movables and Immovables as Viewed by the Law

Recent litigation in France has raised a number of important issues in respect of protecting the cultural heritage and has shown the unfortunate effect on the cultural heritage of the traditional legal division in that system into movables and immovables. The case of Fondation Abegg v Ville de Geneve (the Cazenoves frescoes case) concerned important eleventh century frescoes in Catalan style which had been discovered in an abandoned chapel in southern France, being used by local farmers for wood storage. In 1954 they were detached from the walls by a dealer and sold by him. The property on which they were found was jointly owned by four persons; only two of them had agreed to the removal. When some of the frescoes were exhibited in a Swiss museum, the two aggrieved joint owners sued for their recovery. According to a Franco-Swiss Treaty, jurisdiction concerning movables rested in the court of the defendant's domicile. The possessor of the frescoes, the City of Geneva, argued that the frescoes had come into its hands as movables and that only the Swiss had jurisdiction. Both the French and the Swiss rules as to acquisition of movables protect the bona fide purchaser. Were these movables, or immovables? The French Civil Code (Art. 517) distinguishes immeubles par nature (things which are immovable by their very nature (Art. 518)) and immeubles par destination (things which are made immovable by intention (Art. 524)). The court at first instance held that the frescoes were immovable by nature. The Court of Appeal of Montpellier held that they were immovables by intention. The Cour de Cassation held that they were movables. The only court which specially considered the cultural character of the objects was the court in Montpellier, which held that frescoes detached from a building remain immovables and that the French courts, the jurisdiction where the immovable was situated, thus had jurisdiction. It noted that immovables were better protected by law than movables and that this protection was all the more necessary for ensembles of artistic, historical or archaeological interest which are perhaps today more exposed to spoliation than ever before. As usual the judgment of the Cour de Cassation was brief and did not give reasons of substance for the course it took. The judge