European Central: Nazi-looted Pissarro Painting Will Remain In Spanish Museum, Court Rules
Museo Nacional Thyssen-Bornemisza, Madrid
A calm, dreary afternoon in fin de siècle Paris. Carriages plod up and down the Rue Saint-Honoré as men in dark coats and umbrellas stroll amidst the Parisian architecture. You can imagine yourself looking out a window through the rain, somewhere between a mist and a drizzle. This is the scene presented by Camille Pissarro’s Rue Saint-Honoré, dans l'après-midi. Effet de pluie. A calm, impressionist scene, the painting conveys a feeling of looking out a window on a grey, lazy, French afternoon. At first glance, hanging on the wall of the Thyssen-Bornemisza National Museum in the center of Madrid, you’d never guess the painting’s chequered past, or that it has been at the center of a series of complex, multijurisdictional suits since the turn of the century, ones that only recently have been resolved.
The story of this painting begins in 1897 when it was painted by Camille Pissarro near the end of his career as part of a return to the impressionist style. It was purchased in 1900 by Julius Cassirer, a German industrialist, who passed the painting on to his son Fritz and Fritz’s wife, Lilly. In 1939, however, the story of the painting takes a darker turn. Under the auspices of the Nazi regime, Lilly Cassirer was forced to sell the painting to the Nazi art dealer Jakob Scheidwimmer for the token sum of 900 Reichsmarks, in exchange for an exit visa. The Reichsmarks were then deposited in a bank account Cassirer could not access. By any measure, this was art theft.
After the end of the war, the Allied powers established a process for the reclamation of artwork stolen by the Nazi government, which amounted to ~20% of all existing art in Europe. In 1948, Lilly Cassirer filed a timely claim with the US restitution appeals court, which ruled that she owned the painting and was entitled to it in 1954. The painting was believed destroyed, however, and in 1957 the Federal Republic of Germany (West Germany) compensated her with the painting’s fair market value of 120,000 Deutschmarks, or approximately $250,000, inflation-adjusted.
However, the painting was, in fact, intact, changing hands several times before eventually passing into the ownership of Baron Hans Heinrich Thyssen-Bornemisza, who purchased it from a gallery in New York to add to his personal collection. In 1992, Baron Thyssen-Bornemisza reached an agreement with the Kingdom of Spain to loan his private art to the Thyssen-Bornemisza collection, a Spanish Governmental entity charged with the preservation and display of his private collection at Villahermosa Palace in Madrid. In 1993, the Spanish government bought the collection outright.
Michael Moran l OTTO
Lilly Cassirer’s heir, Claude, discovered that the painting was intact and on display in 2000, and in 2001, filed a petition with the Spanish government to seek its return. This petition, however, was denied, and in response, Claude filed suit against the Thyssen-Bornemisza Collection under Californian jurisdiction in 2005. This case wound its way up and down the court system, before reaching the Supreme Court, which then remanded it to the 9th Circuit Court of Appeals. The Appeals Court’s decision on January 9th in favor of the Thyssen-Bornemisza Collection has attracted some controversy.
At the core of this case is a true conflict between two jurisdictions. Under California law, the painting was Cassirer’s, but under Spanish law, the painting belonged to the museum under Article 1955 of the Spanish Civil Code. Paraphrased, this law protects the museum’s ownership of the painting, as they did not know it was stolen at the time of purchase. This was the rare case where the choice of jurisdiction would completely determine the outcome. The case, therefore, hinged on California’s choice-of-laws test: comparative impairment. This means that whichever party would be more impaired by the other party’s laws being applied receives jurisdiction. In this case, the court found that Spain would be very impaired if California’s law applied, but California would be far less impaired if Spanish law applied.
Ownership of movable goods prescribes by three years of uninterrupted bona fide possession. Ownership of movable goods also prescribes by six years of uninterrupted possession, without any other condition. — Spanish Civil Code Article 1955
The implications of this decision are quite interesting legally. In this case, a US court decided against a US citizen seeking recompense under US law, in favor of granting deference to a foreign jurisdiction under comparative impairment laws. While legally, the Spanish case was sound, there was some discomfort on the bench. In Judge Consuelo Callahan’s concurring opinion on the case, she agreed fully with the application of comparative impairment but argued that, in accordance with Spain’s commitment to the Washington Principles on Nazi-Confiscate Art and the Terezin Declaration on Holocaust Era Assets and Related Issues, the Spanish government has a moral obligation to voluntarily relinquish the painting.
This opinion received a less than positive reception in Spain, where the paintings in the collection are considered part of the national patrimony. Evelio Acevedo, the managing director of the Thyssen-Bornemisza collection, stated in response to Judge Callahan’s comments “We are not going to enter into personal opinions, and this woman, rather than a legal opinion, seems to me to be expressing a personal opinion.” The museum also stated that they were complying with the Washington Principles, as the paintings had been purchased “in good faith” and the Cassirer family had been compensated in 1957.
The Thyssen-Bornemisza collection’s decision to hold on to this painting contrasts with a greater trend across the developed world of museums voluntarily relinquishing parts of their collection that had been stolen from their original owners. For example, The Akland museum, a part of UNC-Chapel Hill, recently returned the painting The Studio of Thomas Couture to the estate of Armand Dorville, a French-Jewish collector who had been forced to sell it in almost identical circumstances. Dorville’s heirs are profoundly thankful for this restitution, with his great-grandnephew saying “We’re still trying to do our best to get his whole collection back together. It’s going to be very difficult, but we’re just beginning, and we will pass on this task to our children.” Perhaps one day the Thyssen-Bornemisza collection’s decision will change, and if it does, it will be of their own will, not of any legal compulsion.
