Rue Saint–Honoré, après-midi, effect de pluie (Rue St. Honoré, Afternoon, Rain Effect) (1892)
oil on canvas, 81 x 65 cm
Thyssen Bornemisza Museum, Madrid
This is a stinging rebuke, and one that should leave a mark. Much ink has been spilled in the past year about the vitality of the Washington Principles, the ground-breaking but non-binding principles enunciated at the Washington Conference on Holocaust-Era Assets in 1998. As I’ve often remarked, and as this judge seemed bothered by, Cassirer is a case where no one disputes that the painting was stolen by Nazis. Yet despite the Washington Principles’ mandate to reach fair and just solutions with claimants and heirs, Spain has escaped any legal consequence for that. This is not an academic discussion, and other sovereign defendants flouting their obligations will surely take note.
Even for Nazi-looted art cases, the Cassirer matter is unusually complicated, but also extremely evocative of the topic at large. I began the introduction to A Tragic Fate—Law and Ethics in the Battle Over Nazi-Looted Art by discussing the case because it involves complicated jurisdictional questions: it is a painting in a museum in Spain that no one disputes was looted by the Nazis, whose ownership has been decided by a U.S. court.
Claude Cassirer—born Klaus—had to flee Germany as a teenager and then Czechoslovakia as a Jew, only to find his grandmother’s painting in Spain 60 years later. He passed away while the case was pending. And for all the thinly-veiled comments one years about claimants and valuable paintings, it should never be forgotten that these paintings were someone's property before the Nazis pried them away. This is the work as it hung in the Cassirer home in Germany:
(photograph courtesy of the Cassirer family)
The latest development followed a ruling in 2015 (after many other prior proceedings) that the museum had acquired title by adverse possession (or prescription) under Spanish law (a choice of law ruling that was hotly contested), and a 9th Circuit ruling in 2017 vacating that result and holding that a trial on the facts was necessary on whether the museum had acquired the painting in good faith (i.e., unaware of it having been wrongfully taken from Lilly). The trial took place last December, and is one of the small number of looted art cases in the last 25 years to have reached that point. The parties submitted evidence and testimony about what Baron Hans Heinrich Thyssen-Bornemisza (the collector from whom Spain acquired it) knew, or should have known, and what the museum knew, or should have known, when they acquired the painting.
Yet there is something incongruous about the ruling that the Baron ignored red flags but that that same diligence was not required of the museum when it acquired the painting in 1993. If the Baron should have investigated the concerns that the Court identified, why was the museum not put to the same duty of investigation? This question will likely feature in any potential appeal, because a court's findings of fact are effectively unreviewable, whereas the standard of law applied to those facts (i.e., the duty to investigate) will be considered by the Court of Appeals anew. But we are not there yet.
The District Court issued its findings of fact and rulings of law on April 30, 2019. After repeating the factual and procedural history, the Court examined the relevant transfers for indicia of good faith (or lack thereof), so-called “red flags.” Among them, the Court held that the price paid by the Baron in 1976 was not a red flag, holding that it was in line with fair market value prices of its time. The Court was intrigued, however, by what it ruled the Baron would have seen when he bought it: “remnants of numerous labels on the verso of the Painting, including a remnant of a label from a gallery owned by members of the Cassirer family.” There was no evidence that this prompted the Baron to inquire further. The Court ruled, however, that subsequent errors in the provenance of the painting were inadvertent errors by the Baron’s employees, not deliberate misconduct.
Critical to the case was the transfer from the Baron to Spain, which happened through a succession of trusts and loans in the first instance. Spain began an investigation of the painting’s title in 1989, but not to events prior to 1980. The painting went on display in Spain in 1992, and Spain purchased it (as part of the entire collection) in 1993 for $338,216,958.09. The Court found this, too, to be a fair market value of the collection at the time, analyzing the experts who appraised it for Spain at the time of the purchase.
While the Court noted what the Baron and Spain did not investigate, it also held that it “would have been extraordinarily difficult for the Baron or TBC to have determined that the Painting was stolen or looted property.” This may be true insofar as the Cassirer family’s search was not capable of being recorded in centralized databases that did not yet exist. Yet it does seem a bit much after decades of heirs being blamed for failing to pounce on works in museums around the world to then excuse a possessor’s lack of any diligence at all. But it’s a useful example of how the state of knowledge has changed because of cases like this, if not to the benefit of this case itself: Walter Feilchenfeldt was a Cassirer gallerist who, while Jewish and himself a victim of persecution, also pops far too often to be coincidentally in a number of transfers by German Jews fleeing the country. Today his name in the provenance would compel suspicion, in 1976 perhaps not.
All of this resulted in some very interesting rulings of law. Under Swiss law (where the Baron acquired the painting), the Court held that he did not possess good title to the painting (even though it had already held they might not have learned that it was, in fact, stolen). Despite the ultimate result, this is a very significant holding that applies Military Government Law No. 59 as part of its findings that title did not pass effectively from Lilly. MGL 59 was an important administrative rule passed by the Allies—who, do not forget, were on the ground investigating the enterprise of looted art in the Third Reich—that shifted the burden of proof off of the claimant, stating that a transfer of a work of art by a person in a persecuted class was presumptively invalid, rather than the other way around. Thus, the Court held, the Baron had never acquired good title when he transferred the painting to Spain, not necessarily as a result of bad faith, but because the title was already defective when he acquired it. Moreover, he could not claim adverse possession because of red flags including:
(1) the presence of intentionally removed labels and a torn label demonstrating that the Painting had been in Berlin; (2) the minimal provenance information provided by the Stephen Hahn Gallery, which included no information from the crucial World War II era and which, contrary to the partial label, did not show that the Painting had ever been in Berlin or Germany; (3) the well-known history and pervasive nature of the Nazi looting of fine art during the World War II; and (4) the fact that Pissarro paintings were often looted by the Nazis.
Given these red flags, the Court concluded that the Baron failed to exercise reasonable diligence and therefore did not acquire good title.
That is not the end of the analysis, however. Under Spanish law, a possessor acquires good title regardless of whether the seller had it “by three years of uninterrupted possession in good faith. Ownership of movable property also prescribes by six years of uninterrupted possession, without any other condition.” That would not apply if the museum had been an accessory (encubridor). The Court found that the museum was not such an accessory, and as such the prescriptive period had run. By the time Claude sought the painting from the museum, it was too late. If the Baron had had actual knowledge that the painting was stolen it may have been imputed to the museum (and made both an encubridor), but the Court specifically held as a matter of fact that the Baron had no such actual knowledge (“although the ‘red flags’ should have raised the Baron’s suspicions, they fall well short of demonstrating the Baron’s “actual knowledge,” i.e., that the Baron had certain knowledge that the Painting was stolen, or that there was a high risk or probability that the Painting was stolen.”).
Therein lies the conundrum. Had the Baron been the defendant in possession of the painting, the Cassirers almost certainly would have won. They could not likely have sued him, of course, because the painting was in private hands. Its location became knowable with reasonable certainty when Spain acquired it, but that also meant that a clock had started ticking that the Cassirers did not (and probably could not) have known was running. Indeed, Claude’s inquiry missed the prescriptive period by barely a handful years, a heartbreaking near miss considering the history of the painting and the family.
Based on this analysis, the Court found for Spain. It hardly did so enthusiastically. In its conclusion, it stated:
[The museum’s] refusal to return the Painting to the Cassirers is inconsistent with the Washington Principles and the Terezin Declaration. However, the Court has no alternative but to apply Spanish law and cannot force the Kingdom of Spain or TBC to comply with its moral commitments.”
* * *
For further background, consult A Tragic Fate. The factual history of the case from Chapter 16 of my book is summarized as follows.
Julius Cassirer, along with his brother Louis, was one of the founding partners of Dr. Cassirer and Co. Kabelwerke Berlin-Spandau. Their sons, Bruno and Paul founded the Bruno and Paul Cassirer Publishing House, and shared a particular devotion to Impressionism that they had acquired at Paul Durand-Ruel’s gallery. Julius died in 1924 and left Rue Saint–Honoré, après-midi, effect de pluie (Rue St. Honoré, Afternoon, Rain Effect) by Camille Pissarro to his oldest son, Fritz (Bruno’s older brother). Fritz was a musician who had worked as conductor of the Komische Oper in Berlin and later in London. He died of a brain tumor just two years after his father. His estate devolved to his wife, Lilly Karolina (née Dispecker). Lilly and Fritz had one child, Eva Charlotte. Eva Charlotte married one of her father’s first cousins, Friedrich Wilhelm Cassirer (also nicknamed Fritz). They lived in Berlin, on Siemensstrasse in Grünewald, a western suburb, which the city’s expansion in the 1920s turned it into the vast, sprawling metropolis for which it was renowned. Their first child was a son, Klaus Wolfgang. Just four months later, Eva Charlotte died of influenza. Klaus grew up in Berlin with his father and near his grandmother, Lilly at nearby Ludwigstrasse 176.
The family’s business was forcibly closed on March 30, 1933. Fritz and his twelve-year-old son left their house that night with only two suitcases and fled to Prague, a natural destination for many victims of political persecution. After the annexation of Czechoslovakia, Fritz could not stay. He went to Paris via Hungary, Yugoslavia, Italy, and Switzerland. Klaus was by then in London.
In 1939, Klaus finished school. His grandmother Lilly, who was by then remarried to Otto Neubauer, was trying to obtain a visa to leave Germany, for obvious reasons. In addition to the Pissarro, she owned an Ernst Barlach sculpture, a Ruysdael landscape, and other artworks. An official of the Reichskammer der bildenden Künste (Reich Chamber of the Visual Arts or RBK) obtained a warrant to search Lilly’s home. This man, Jakob Scheidwimmer, expressed an interest in buying the Pissarro. Lilly later testified in 1951 that: “I went along with it, although I knew this price didn’t even remotely reflect its true value. Theoretically, I would have the option of trying to sell the painting to another Aryan art dealer….Furthermore, we had to consider the possibility that Scheidwimmer—we weren’t sure whether he had connections with the Gestapo—might take offense at our refusal to sell.”
On March 16, 1939, they signed a contract for the painting for RM 900. That money, like all assets at that point, went into her blocked account. She and Otto left Germany on July 24, 1939 for England. She was billed RM 136,713 in flight taxes, and 104,800 in a Jewish asset tax—more than $4 million today. Klaus was in France in the Pyrénées and was trapped when the war broke out. After a torturous journey through Morocco, he made it to New York where his father and stepmother had arrived earlier. He changed his named and lived the rest of his life as Claude Cassirer.
The Pissarro was seized in Rotterdam by the occupying German forces from Jakob Sulzbacher, a department store owner in a borough of Munich who had obtained it from Scheidwimmer. The painting somehow made its way from there into the hands of Ari Walter Kampf, son of painter Eugen Kampf and nephew of Nazi-approved landscape painter Arthur Kampf. It was auctioned in 1943 in Berlin at Hans W. Lange auction house for RM 95,000, more than 100 times what Lilly had been paid.
Lilly died in 1962 in Cleveland, Ohio, having never learned of the painting’s whereabouts. Claude did learn in 2001 where the painting was: Madrid. Baron Hans Heinrich Thyssen-Bornemisza, a Dutch born Swiss industrialist (and client of Jacques Goudstikker), had acquired the painting at some point. The Pissarro had been sold in 1952, in New York, at the Knoedler & Co. Gallery to Sydney Schoenberg in St. Louis, Missouri. Then in 1976, it was purchased by Thyssen-Bornemisza at the Hahn Gallery, again in New York. He sold it, and his vast art collection, to the Kingdom of Spain in 1993, where it has hung ever since in the Thyssen-Bornemisza museum.
The lawsuit was filed in 2005. The District Court found that it had jurisdiction under the Foreign Sovereign Immunities Act because the "sale" by Lilly constituted a taking in violation of international law. It was dismissed by the District Court, on the grounds that the foreign affairs doctrine preempted the claim, before being reinstated by the 9th Circuit in 2013. The District Court then granted the museum summary judgment in 2015, ruling that the museum had acquired title by adverse possession. As noted above, the 9th Circuit remanded in 201 [sic].