How an ordinance of 1945 fostered the restitution of a painting looted during World War II

Nomos 29 December 2017

France: Last spring, La Cueillette, a painting from the impressionist master Camille Pissaro, was exhibited at the Marmottan Monet museum. It appeared that this painting was one of the many pieces of art seized by the Nazis during World War II.

The canvas belonged to the art collector Simon Bauer, before it was confiscated from him by the Vichy government and sold by an art dealer. When Simon Bauer came back from Drancy, he started to recollect his ninety-three masterpieces collection. On November 8th 1945, by application of an April 21st, 1945 ordinance which rendered the sales of the paintings looted during the conflict null and void, he obtained that the canvas had to be given back.

The decision was confirmed in appeal on May 4th, 1951, but the painting returned neither to his owner, who died in January 1947, nor to his heirs. Instead, it was sold in London and afterwards bought in a public auction in New York by an American couple, who lent it to the Marmottan museum.

When the Bauer heirs traced back the canvas, they immediately brought a legal action to recover it. On May 30th, 2017, the Tribunal de grande instance de Paris provided an interim order to have the painting impounded in France pending a ruling with the objective to determine who its rightful owner is.

A second trial took place on November 7th, 2017, and the Court ruled that the April 21st, 1945 ordinance dispositions were still enforceable. Indeed, in the frame of its article 21, Simon Bauer brought a lawsuit less than 6 months after the end of World War II. Moreover, this text sets out that both seizures committed during the conflict but also transfers of property consecutive to these acts are concerned. Besides, not only the goods owner can benefit from the text dispositions, but also his heirs.

This text being enforceable, the classical French principle providing that the courts with jurisdiction would be the one of the place where the defendants live is dismissed to the profit of a special rule of free will of the claimant. Thus, Paris Tribunal had jurisdiction in this case.

Besides, the application of another principle settled by the French civil code providing that as far as movable goods are concerned, possession equals title except if the said owner can prove that the opponent is a bad faith possessor, would be here irrelevant. Indeed, in case of looted pieces of art, the ordinance provides that all the possessors would be in bad faith regarding the evicted owner.

The opponent tried to have the classical thirty-year acquisitive prescription applied, making impossible to oppose to him an exception inferred from bad faith. The court indicated that this delay does not run or is suspended against one for whom it is impossible to act following an obstacle resulting from the law. The 1945 decision could only apply on the French territory, and the ordinance has no effect in front of an English or American judge. The heirs had to wait for the painting to be returned in France, what they actually have done since the canvas was outside of French borders from June 22nd, 1966 until February 2017.
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