On Monday, a federal appeals court in San Francisco revived a 16-year-long Nazi restitution dispute centered on an Impressionist painting by Camille Pissarro, the value of which could exceed $40 million.
Currently held by Madrid’s Thyssen-Bornemisza Museum, Rue Saint-Honoré, Après-midi, Effet de Pluie (1897) was originally owned by German-Jew Lilly Cassirer, who sold the work to a Nazi functionary in 1939 for roughly $360. Asserting the transaction was a forced sale, Cassirer’s heirs filed a petition in 2001 in Spain seeking the work’s return after they learned where it was being held. When the petition was denied, Cassirer’s grandson and great-grandchildren sued the Spanish museum in 2005.
In June of 2015, a lower court dismissed the suit, ruling the museum held the rights to the painting under Spanish law.
But Monday’s ruling by the U.S. 9th Circuit Court of Appeals found that while Spanish law does apply, a trial is required to determine whether or not the museum knew the painting was stolen when it was acquired in 1993 from Baron Hans Heinrich Thyssen-Bornemisza as part of a $338 million purchase of his collection.
“We're obviously very pleased,” Stephen Zack, a Boies, Schiller & Flexner partner representing the Cassirers, told Reuters in a phone interview. “This has been a scar they've had to deal with for generations.”
Camille Pissaro, Rue Saint-Honoré, Apres-midi, Effect de Pluie (Rue St. Honore, Afternoon, Rain Effect), 1897. Image via Wikimedia Commons.
As is typical in Holocaust restitution cases, the work’s provenance stretches across multiple continents. The baron bought the Pissaro work in 1976 from New York’s Stephen Hahn Gallery and then took it to Switzerland where it remained until 1992.
Unlike U.S. law, under Swiss law, title to a stolen artwork can pass if a purchaser acted in good faith and did not know the work was stolen. But the appeals court noted a good faith transaction wouldn’t occur if the purchaser “failed to exercise the diligence required by the circumstances.”
The Cassirer heirs have long asserted that there was reason to suspect the work’s provenance. One example is that in purchasing the piece from Stephen Hahn Gallery, the Baron paid $275,000—what an expert for the heirs testified “was approximately half of what would have been expected in a dealer sale, and that there is no reasonable explanation for this price other than dubious provenance.”
“After reviewing the record developed before the district court, we conclude that there is a triable issue of fact as to the Baron’s good faith,” the appellate decision reads, noting the museum “has not established, as a matter of law, that it did not have actual knowledge the [Pissarro] was stolen property.”
Thaddeus Stauber, a lawyer for the foundation which runs the museum, disputed the findings, telling Reuters that the purchase was made in good faith and that he was “confident that the foundation's ownership of the painting will once again be confirmed.”
Monday’s appellate decision is the most recent instance in which a higher court has revived a prominent Holocaust restitution case. Along with the Cassirers’s case, the 9th Circuit has prevented the dismissal of the long running dispute between the Norton Simon Museum and Marei Von Saher over two looted pieces by Lucas Cranach the Elder held by the institution. The future of that case will again rest with the 9th Circuit after a lower court dismissed the case for a third time last August.
The D.C. Court of Appeals also reversed a prominent dismissal by a lower court of a Holocaust restitution case, ruling in June that heirs of the original owners of the Nazi-looted Herzog collection can continue in their quest seeking the return of the works now held in Hungarian state museums.
Broadly, the Cassirer case exemplifies the complex and sometimes conflicting nature of the law and ethics when it comes to Holocaust restitution cases. Neither party disputes the piece passed into Nazi hands through “forced sale,” or one made for diminished value under coercive circumstances. But the museum notes that they had nothing to do with how the work was taken, and asserts that under Swiss and Spanish law they hold good title to the Pissaro.
“This isn’t a case where people disagree about whether the art was stolen,” said Nicholas O’Donnell, art lawyer and author of A Tragic Fate: Law and Ethics in the Battle over Nazi-Looted Art. “And yet here we are.”
May 4–8, 2018, Park Avenue Armory