U.S. Appeals Court Rules Spanish Museum May Keep Nazi Looted Art #holocaust #announcements


Jan Meisels Allen
 

 

 

The Ninth U.S. Circuit Court of Appeals ruled unanimously on August 18, 2020, that a Camille Pissarro painting a Jewish woman traded to the Nazis to escape the Holocaust in 1939 may remain the property of a Spanish museum that acquired it decades later. While the case has been making the rounds of Spanish and US courts for 20 years this may not be the last court that has a decision on who owns the painting valued at $30 million.  The Cassirer family may appeal to the full 9th Circuit or even the U.S. Supreme Court.

 

The painting is, "La Rue St. Honoré, effet de Soleil, Après-Midi, 1898,” an oil-on-canvas work of a rain-swept Paris street that Pissarro painted as he gazed at the scene from his hotel window.

 

Lilly Cassirer’s father-in-law bought it directly from Pissarro’s art dealer and left it to her and her husband when he died. In 1939, she traded it to the Nazis in exchange for exit visas for herself, her husband and her grandson, who eventually settled in the U.S. Her great-grandson, David Cassirer of San Diego, has continued the litigation since his father's death.

 

Neither Cassirer's heirs nor Spain's Thyssen-Bornemisza Museum dispute the painting's early history.

 

What's at issue all these years later is whether Baron Hans Heinrich Thyssen-Bornemisza made any serious effort to determine the painting was looted art when he acquired it from a New York gallery owner for $275,000 in 1976.  Also in question is whether the Spanish curators did their due diligence in tracing its provenance when a Spanish nonprofit foundation acquired it and hundreds of other paintings from the baron's collection in 1992 and created the Madrid museum that bears his name.

 

Lilly Cassirer’s heirs say she spent years trying to recover the painting before concluding it was lost and accepting $13,000 in reparations from the German government in 1958.

 

It wasn’t until 1999 that her grandson, Claude, who had vividly recalled seeing it hanging in the family's German home, discovered it in the Madrid museum. After Spain refused to hand it over, he sued.


To read more see:

https://www.nytimes.com/aponline/2020/08/18/us/ap-us-nazi-looted-art.html

 

Jan Meisels Allen

Chairperson, IAJGS Public Records Access Monitoring Committee

 


Sarah L Meyer
 

She voluntarily traded it, it was not stolen.
--
Sarah L Meyer
Georgetown TX
ANK(I)ER, BIGOS, KARMELEK, PERLSTADT, STOKFISZ, SZPIL(T)BAUM, Poland
BIRGARDOVSKY, EDELBERG, HITE (CHAIT), PERCHIK Russia (southern Ukraine) and some Latvia or Lithuania
https://www.sarahsgenies.com


Stephen Katz
 

Yes. As a lawyer, I'd suggest that this is the threshold question -- whether or not the art was in fact stolen or unlawfully confiscated. I couldn't read the NY Times article cited by Jan Meisels Allen since I'm not a subscriber. But other news reports (which should be taken with a grain of salt) suggest that the three-judge panel rejected the claim because the claimant hadn't established that the museum knew that ithe painting was "stolen" when it acquired it. The reports also suggest that the panel applied Spanish law, rather than international conventions on Nazi-looted property. Whether the panel addressed the threshold question of whether the art WAS "looted" is not indicated in the press reports. This case is likely to proceed further.
Stephen Katz


Jan Meisels Allen
 

Stephen Katz said he could not read the NY Times article since he is not a subscriber.  The NYTimes permits up to 5 free articles per month,  I am also not a subscriber but I do use my 5 freebees each month when I find from my Google Alerts and other sources that there is an article of interest.  Most, not all, of the US national newspapers, permit a limited free usage per month. You do have to register for the NY Times and other newspapers but not for the AP report which I was able to obtain by placing the title in subject line above in Google.com

Here is also a free AP report on the same issue: https://apnews.com/e453da322a4016d0ad0c14cb60149fe8#:~:text=LOS%20ANGELES%20(AP)%20%E2%80%94%20A,than%20a%20half%2Dcentury%20later.

Jan Meisels Allen
Chairperson, IAJGS Public Records Access Monitoring Committee


Glenda Rubin
 

Many libraries have an arrangement with the Times for free access to the electronic edition that can be renewed. One library I'm a member of has 72-hour access, another has just 24-hour access.
 
You should be able to find if your library has the arrangement - and how to access - on the newspapers or digital resources page on your library's homepage.
 
Glenda Rubin

On Thu, Aug 20, 2020 at 3:46 PM Jan Meisels Allen <janmallen@...> wrote:
Stephen Katz said he could not read the NY Times article since he is not a subscriber.  The NYTimes permits up to 5 free articles per month,  I am also not a subscriber but I do use my 5 freebees each month when I find from my Google Alerts and other sources that there is an article of interest.  Most, not all, of the US national newspapers, permit a limited free usage per month. You do have to register for the NY Times and other newspapers but not for the AP report which I was able to obtain by placing the title in subject line above in Google.com
 
Here is also a free AP report on the same issue: https://apnews.com/e453da322a4016d0ad0c14cb60149fe8#:~:text=LOS%20ANGELES%20(AP)%20%E2%80%94%20A,than%20a%20half%2Dcentury%20later.
 
Jan Meisels Allen
Chairperson, IAJGS Public Records Access Monitoring Committee
 

 

 


--
=========================================
Glenda Rubin
San Francisco Bay Area
Researching: STRYZEWSKI, STRAUSS, JANOFSKY, JANOFF, OBODOV, WERNICK, GREENBERG, KROCHAK. Shtetls: Lipovets, Ilintsy, Pliskov, Starokonstantinov, Krasilov


Adam Cherson
 

I haven't read the proceedings of this case, but there is a question in my mind whether a contract (i.e. a purchase and sale transaction) is a voluntary one if one of the parties is acting under extreme duress (i.e. a gun to the head). If the seller's thinking was: either I give this painting over in exchange for the passport or I will likely die, then that is not a truly voluntary meeting of the minds. If that was the case, then one might argue that the original sale was void from the inception and that therefore the chain of title is no good. I guess it all depends on how real the threat to her life was in 1939 in the place where the transaction occurred.

Adam Cherson


Herbert Lazerow
 

   The initial question in this case was whether California or Spanish law would apply to determine the ownership of a painting that was bought in the U.S. 60 years ago by a Spaniard, kept in Spain during that time, and was transferred to a Spanish foundation.  Judge Walter in a thorough opinion in 2015 ruled that Spanish law applied.  On appeal to the 9th circuit, the court affirmed that opinion, but remanded to Judge Walter to determine the factual question of whether the last requirement of Spanish law had been met, being whether the acquirer was a good faith purchaser. Under Spanish law, one needs to not only not know that the work had been stolen.  One must also have engaged in the due diligence that a reasonable purchaser would have exercised at the time under the circumstances of this purchase. After taking testimony, Judge Walter found that the purchaser was a good faith purchaser. A three-judge panel of the 9th circuit affirmed. The Cassirer's options now are two.  They can petition the 9th CIrcuit to hear the case en banc, which means that it would be heard by a panel of around 11 judges; or they can petition the U.S.. Supreme Court to grant certiorari and hear the case. Success in neither case is likely.  En banc hearings are usually granted only to decide important questions of law, and this appears to be primarily a question of fact. The Supreme Court usually grants certiorari when there is a conflict between two circuit courts on the appropriate legal rule.
Bert
--
Herbert Lazerow
Professor of Law, University of San Diego
5998 Alcala Park, San Diego CA 92110
lazer@...
Author: Mastering Art Law (Carolina Academic Press, 2d ed. 2020)


Adam Cherson
 

First, I thank Professor Lazerow for summarizing the case for those of us with not time to digest another legal document. According to the professor, the case hinges upon whether the buyer showed the "due diligence [in verifying whether the seller had good title] that a reasonable purchaser would have exercised at the time under the circumstances of this purchase." I cannot tell from the summary whether Baron Thyssen-Bornemisza showed reasonable due diligence. All I know from this discussion is that the baron bought the work from a New York Gallery owner in 1976. So what would be reasonable due diligence under these circumstances? Certainly one would want to learn the provenance of the painting (where, when and how did the New York gallery owner get the work?), The next obvious question would be whether the prior owner(s) had good title. Now, I don;t know how much the dealer knew or told the baron about the painting's history, but supposing the baron knew that the Nazi government had been a prior owner, then due diligence, in view of well known and widespread Nazi looting activities, would have involved a determination, perhaps by a lawyer, as to whether the transaction between Lilly Cassirer and the Nazi government was a valid legal contract under German law at the time of that transaction. If it was considered legal under German law for a government official or agency to receive a painting in exchange for securing three exit visas, then there would be no legal issue as to whether succeeding owners could claim a valid title to the work (this would be a question of German law). On the other hand, if the baron had no knowledge of Nazi involvement in the chain of title and could not have reasonably obtained such knowledge, then we have a different case, which would seem to me to be governed by New York law, since the transaction seems to have taken place in New York. In New York State the innocent buyer of stolen property does not become its owner. The buyer would be required to return the property to its rightful owner, and the thieves would owe the innocent buyer the purchase price in restitution. The thieves in this case, if the original transaction was void, would be the successors-in-interest of the Nazi government and possibly other subsequent owners depending on their knowledge of the original theft.

Adam Cherson


Herbert Lazerow
 

     Stephen Katz and Adam Cherson raise excellent points about the Cassirer case.
     In this case, the parties probably stipulated that the painting was stolen. In 1939, Lilly Cassirer  transferred the painting to a Nazi art appraiser for 900 Reichsmarks, well below its actual value, which the appraiser paid to a blocked account that Lilly could never access. The painting then disappeared. 
     A transfer under duress applied by the transferee or someone related to him would not be a voluntary sale and would not transfer the title to the painting. On the other hand, whether a transfer due to financial hardship not imposed by the transferee, such as loss of income source due to the Nazi laws followed by a public auction, would be a theft, has yet to be decided.
     In this case in 1951, the painting surfaces in a reputable U.S. art gallery. It was sold to a U.S. collector by a reputable gallery. In 1952, the collector sold it though a reputable New York gallery to another U.S. collector. In 1976, Baron Thyssen-Bornemisza bought the painting through a reputable New York gallery. The painting was kept mostly in Switzerland until 1992, when the painting (along with the rest of the Baron’s collection) was loaned to the Spanish government and put on display by a foundation established by the Spanish government in a Madrid Palace.  The foundation bought the collection, including the Pissarro at issue,  in 1993 with funds provided by the Spanish government.
     The precise question in this case is whether the foundation had acquired title by acquisitive prescription. To acquire title in that way under Spanish law, a person must possess the property as though he were the owner for a set length of time. In U.S. law, we have a comparable doctrine called adverse possession. Under Spanish law, the length of possession for a good faith purchaser is shorter than the time required for others to acquire title.
     The trial judge found that the Baron, when he purchased the work in 1976, did not know that it had been stolen, and was not “wilfully blind” to the likelihood that it had been stolen. The court found that in 1976, when you bought a painting from a reputable gallery that displayed a bill of sale from another reputable gallery, there was no reason for a buyer to inquire further. Whether the court would have given the same answer had the Baron purchased at a later date, I cannot say. Thouogh the art world is famous for the secrecy of its transactions, it has become more common to pay attention to provenance since then. If the Baron had known that the work had been owned by the Nazi party, the wartime German government, or a prominent Nazi art dealer, there might have been a different answer.
    What the 9th Circuit decided (on the litigation’s third visit to the Court of Appeals) was that there was ample evidence to support the trial judge’s verdict.
    Adam is correct that if the question in the case was the legal effect of the sale in New York, New York law should apply (though some scholars might dispute that) and the Cassirers would win. But the question in this case was whether the Spanish doctrine of acquisitive prescription would apply.  If the Baron purchased in good faith, enough time had passed for him to become the owner under Spanish law. If the Baron did not purchase in good faith, the longer period for acquisitive prescription would apply, and that period had not been met.
     This is the classic case of the eternal triangle of the law. An owner is robbed of his property. The wrongdoer sells it to a good faith purchaser, and absconds with the money, leaving the owner and the purchaser to sort it out. In common law jurisdictions, the owner wins because England had a stronger attachment to the sanctity of property.  In continental European countries that follow Roman legal traditions, the good faith purchaser wins because their law favored the security of commerce over the security of ownership.  In neither jurisdiction do they follow what seems to me to be a sensible solution, which is to split the property. Each party is innocent.  Each has been wronged. Why should one win everything and the other lose everything when they actually stand on equal innocence?
    This case is a good example of waste. The claim is being made by the original owner’s grandchildren. If they win, they will need to sell the painting. Their lawyer, one of the best law firms in the country, is probably charging a contingent fee of between one-third and 40% of the fair market value of what is recovered. The Pissarro will probably fetch multi millions of dollars on the auction market.  It is doubtful that the Cassirers have a spare 3 or 4 million to pay their lawyers, much less the financial resources required to insure, secure and maintain such a valuable painting. So it will go to auction, where it is likely to be bought by a very wealthy person.  In the best of all worlds, it would disappear into a private collection for a generation, then be given to a museum. Alternatively, it might be placed in a storage locker in a freeport such as the Geneva airport and unseen for an indeterminate period of time. On the other side, the foundation is also represented by one of the best law firms in the U.S. It is difficult for an outsider to estimate what the legal fee has been, but it is not unusual to have a $1 million lawyer’s bill to litigate to the court of appeals once.  This case has been there three times, though presumably the cost of each trip is less than the preceeding trip. How much more efficient it would have been for everyone (except the lawyers) for the foundation to have offered the Cassirers a reasonable amount plus a promise that the full sad story of their ancestor would be displayed on the identifying tag, and the Cassirers to have accepted it in lieu of trying to get the full value of the painting less their legal fees.
Bert
--
Herbert Lazerow
Professor of Law, University of San Diego
5998 Alcala Park, San Diego CA 92110
lazer@...
Author: Mastering Art Law (Carolina Academic Press, 2d ed. 2020)


Adam Cherson
 

Even more appreciation to Professor Lazerow for not only detailing the facts of the case, but for providing a meta-critique of the structure of the Euro-American legal system (and its lawyers). Not to belabor this much more there are a few observations I make on the Professor's anaylsis: 1) the doctrine of adverse possession, which is similar in effect to the statutes of limitations covering some crimes and some other unlawful behaviors,  includes the notion of being 'open and notorious'; this is to assure that anyone who might wish to contest the adverse ownership can actually find out who owns their property and then try to do something about it before the period expires. I don't know to what extent the Spanish prescription law includes these criteria, but if it does, I wonder whether the ownership(s) in this case ever reached that level of openness and notoriety, 2)  'the wrongdoer...absconds with the money': this is a key flaw in the system described by the Professor which when all the dust has settled serves to shield plunderous activity (and its beneficiaries) while inciting legal warfare between innocent parties seeking justice: the actual wrongdoer avoids responsibility entirely while at best one of the innocents may win a pyrrhic or costly victory, meanwhile society as a whole loses; I don't know to which ancient legal system we can attribute the shielding of plunder and illegality (all for the benefit of the wrongdoers, their 'fences', and some lawyers), but it seems to be a fundamental principle to the Euro-American legal system as we know it today. I suspect that the origin of this legal orientation stems from the influence of ancient nomadic, raiding cultures of the Eurasian steppes who sought to justify their economic 'take-over' legal model in the places they raided and plundered. Since Pissaro was of Danish-French descent and born in St. Thomas, perhaps after the innocents split the proceeds of sale, the painting should wind up on that Caribbean island for public enjoyment. When I look at the painting I am astonished by the fact that a small piece of canvas overlaid by some oil-based pigments and surrounded by a few timbers, no matter how expertly crafted, could actually be worth 30M$US on the auction block! But that is another subject.........

Adam Cherson


isak@bm.technion.ac.il
 

Dear all

In his long discussion Mr. Cherson writes that Camille Pissaro was of Danish-French descent. Wrong! Jacob Abraham Camille Pissarro was born Jewish, to a father of Portuguese marrano extraction who was an active member of the little Jewish community of the island and to a local Jewish mother. He came in conflict with the Jewish community because he married the widow of his uncle which for the strict orthodox then and now is utterly forbidden. This has of course nothing to do with the judicial Cassirer issue. But to the many solutions suggested by Mr. Cherson I would add, why not donating the Pissaro to the Israel's Museum in Jerusalem?

 

Prof. Isak Gath MD, DIC, DSc

Faculty of Biomedical Engineering             Tel. Office #972-4-8294115

Technion Israel Institute of Technology             Home #972-4-9835704

32000 Haifa, Israel

 


Adam Cherson
 

I thank Prof. Gath for the additional information regarding Pissaro's ancestry, which is a fascinating twist to the story (this seems like an interesting novel for those who are interested: https://repeatingislands.com/2015/09/14/the-marriage-of-opposites-who-was-rachel-pissarro-camilles-mother/). I would not say it is legally 'wrong' to identify Camille Pissarro as Danish-French. He was born in the Danish colony of St. Thomas to a mother who was from a family of French Jews and a father who was from a family of French Jews of Portuguese extraction. Pissarro's father was a prominent merchant on the island of St. Thomas, whose island economy provided much of Pissarro's wherewithal throughout his life. Pissarro studied painting in France, his paintings executed mostly in France, are predominantly of French landscapes and French urban scenes (with some other Northern European scenes as well), and he married and had children in France with a French-Catholic woman. So perhaps a more accurate description would be to say that Pissarro was a French Jew born on Danish territory (of Sephardic descent on his father's side, not sure of his mother's). I do not know whether St. Thomas or Israel or France or somewhere else would be the most justified place for this painting to be exhibited, but it would seem that Madrid isn't of much relevance to the story, unless one considers the Spanish and later Portuguese expulsions to have initiated the chain of events which eventually lead to St. Thomas, which would be of course the most ironic ending of all: a museum in the place that expelled Pissarro's ancestors now owning the painting, which in turn could be a good thing if it were used to show the error and harm of Spain's arbitrary ethnic cleansing of Jews 500 years ago. I personally would like to see the tiny Caribbean island which fomented Camille Pissarro's artistic output get the credit for at least one of his roughly 1,600 works. I also think it makes sense for his works to be on exhibit in France, the Dominican Republic (mother's family), Israel, Portugal, and yes even in Spain. Camille Pissarro was a product of all these places, and probably more. I am reading that Pissarro was also an anarchist politically (which is not to be confused with someone who advocates for what we think of today as anarchy). Is there a museum somewhere for anarchist painters I wonder :-)

Adam Cherson


isak@bm.technion.ac.il
 

I object to one word used by Mr. Cherson in his original message to the list. The word is ancestry. Pissaro's ancestry regarding both parents was no doubt Jewish and not Danish, French or whatever. Where he studied, worked or identified himself with, is a different issue. An imaginary plan what to do with his masterpiece is left more so to greedy lawyers than to anybody else, including the legal heirs.

 

Prof. Isak Gath MD, DIC, DSc (Elect.Eng)

Faculty of Biomedical Engineering             Tel. Office #972-4-8294115

Technion Israel Institute of Technology             Home #972-4-9835704

32000 Haifa, Israel

 


Todd Warnick
 

It's like buying fenced properly. This is a scandalous decision. 


pweston@...
 

A question please?  Is there any validity is suggesting that the original thief, the Nazi government and their official who extorted the painting from the owner, can be held responsible for the value of the painting and reimburse the current owner having the painting revert to the original owner?

pweston@...


Kate Haas
 

I find this decision to be incorrect. We had a family member, Lea Bondi Jaray, who owned an art gallery in Vienna in 1938. She and her husband decided to leave for London and bought tickets to take a train to Calais, then London. A Nazi collaborator came to her gallery and looked over her paintings. He said, “You do want to be able to get on your train tomorrow, right? I really like this piece by Egon Schiele - a portrait called “Wally”. I’m sure you would like to give it to me.” He offered her a couple of Marks for it and walked out with it under his arm. Long story short, after the war, the picture ended up in the Belvedere Art Museum in Vienna. Mrs. Jaray came from England numerous times to try and reclaim her painting to no avail. She died and eventually the painting came with an exhibit to MOMA. At the urging of the Issac-Bondi family, Senator Domenico of NY had the painting seized by the US Customs agency as looted art, and the family began a law suit. Eventually, at the family’s request the painting was returned to the Belvedere Museum upon the payment of $19 million to the family. There is a plaque beneath the painting indicating this. As I recall, the legal argument was the threat of being unable to emigrate unless the painting was sold to the Nazi for a few sou. 

The issue around the Spanish Museum painting sounds very similar. This family’s lawyers should look into the Bondi-Jaray case, decided in New York State. 

Kate Haas


Herbert Lazerow
 

    Kae Haas is correct that the Portrait of Wally case is similar in some ways. One of the lessons of law school is that no matter how complex a case seems when you first examine it, it is always much more complicated when you have carefully researched both the facts and the law. There were several important differences between Portrait of Wally and Rue St Honore.
    One is the plaintiff. In Rue St. Honore, plaintiff was the heir of the owner.  In Portait of Wally, plaintiff was the United States.  Why was the U.S. suing?  The National Stolen Property Act provides that stolen property knowingly imported into the U.S. may be civilly forfeited to the U.S. It is the custom of the U.S. (though not required by law) to return stolen property to the owner from whom it was stolen. That is one piece of good news. A second is that the true owner does not need to pay the legal expenses; they are paid by the U.S. A third is that the defendant may perceive that there may be collateral consequences to failing to “do the right thing”. The bad news is that the owner does not control the lawsuit.  The Department of Justice does.  It may decide to settle the case on terms that are not satisfactory to the owner. That did not happen in this case.
    A second difference is the defendant. In Rue St Honore, defendant made a credible case that it was a good faith purchaser. Defendant in Portrait of Wally could not make that case. Defendant was an organ of the Austrian government. At the end of the war, the Allies confiscated Wally from the Nazi who had stolen it. It was mistakenly delivered to the Belvedere.  A Dr. Leopold, who knew that Wally had been stolen from Lea Bondi Jaray, promised to help her recover the painting, but instead bought Wally from the Belvedere. Wally thus became part of the collection that was “sold” in the 1990s to the Leopold Museum, of which Dr. Leopold was the director. While the museum argued that both it and Dr. Leopold were good faith purchasers, Judge (later Attorney General) Mukassey properly gave that argument little credence in their motion for summary judgment.
    In fact, there was never a final decision in Portrait of Wally. Ten years of discovery ensued where the parties tried to sort out all the facts related to the case. Both sides moved again for summary judgment, which Judge Preska, who inherited the case, denied, as she believed that there were unresolved issues of fact. As Ms. Haas related, the Austrian government then settled. It paid the heirs $19 million, and agreed to post the described label near Wally. The U.S. agreed to dismiss its suit. The Austrian government had reportedly incurred $4 million in legal fees, and was facing more if the case went to trial, and still more if an appeal followed the trial. In the meanwhile, the Altmann case had resulted in Austria’s loss of important paintings by Gustave Klimt that had been star attractions in Vienna. Its primary concern was keeping Portrait of Wally in Austria.
    Dr. Leopold had died during the intervening years. His son, who was on the board of trustees of the Leopold Museum, said that his father had asked the Austrian government to offer a settlement of $2 million at the time the painting was seized in New York, but the Austrian government had refused to offer that settlement.
Bert
--
Herbert Lazerow
Professor of Law, University of San Diego
5998 Alcala Park, San Diego CA 92110
lazer@...
Author: Mastering Art Law (Carolina Academic Press, 2d ed. 2020)