ISAAC KAPLAN
Appeals Court Revives
16-Year Lawsuit over $40 Million Nazi-Looted Pissarro
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.
https://www.artsy.net/article/artsy-editorial-lawsuit-40-million-nazi-looted-pissarro-painting-revived
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