Tuesday, July 11, 2017
Court Reinstates Action Over Painting Looted by Nazis
Ninth Circuit Says Museum in Spain Was Erroneously Granted Summary Judgment
From staff and wire service reports
A California family may maintain an action to get back a Camille Pissarro painting that the Nazis looted from their Jewish ancestor, the Ninth U.S. Circuit Court of Appeals held yesterday.
Judge Carlos T. Bea wrote the opinion. It reverses a summary judgment which U.S. District Judge John F. Walter of the Central District of California granted two years ago to defendant Thyssen-Bornemisza Collection (“TBC”), a museum in Madrid.
The ruling revives a lawsuit under the Holocaust Expropriated Art Recovery Act of 2016 over the 1897 oil-on-canvas Paris street scene.
“In 1939 Germany, as part of the ‘Aryanization’ of the property of German Jews,” Bea recounted, “Lilly Neubauer,” grandmother of the plaintiffs, David Cassirer and Ava Cassirer, “was forced to ‘sell’ ” the painting to Jackob Scheidwimmer, an art dealer in Berlin.
The jurist continued:
“We use quotation marks around ‘sell’ to distinguish the act from a true sale because Scheidwimmer had been appointed to appraise the Painting by the Nazi government, had refused to allow Lilly [Neubauer] to take the Painting with her out of Germany, and had demanded that she sell it to him for all of $360 in Reichsmarks. which were to be deposited in a blocked account. Lilly [Neubauer] justifiably feared that unless she sold the Painting to Scheidwimmer she would not be allowed to leave Germany.”
$30 Million Value
The piece has been appraised at more than $30 million and has resided at Spain’s Thyssen-Bornemisza Museum since 1993.
“[W]e are called upon to decide whether the district court correctly granted summary judgment to TBC based on TBC’s claim that it acquired good title to the Painting through the operation of Spain’s law of prescriptive acquisition (or ‘usucaption’) as a result of TBC’s public, peaceful, and uninterrupted possession in the capacity as owner of the Painting from 1993 until the Cassirers filed a petition requesting the return of the Painting in 2001,” Bea wrote.
This 2005 file photo shows an unidentified visitor viewing the Impressionist painting called "Rue St.-Honore, Apres-Midi, Effet de Pluie" painted in 1897 by Camille Pissarro, on display in the Thyssen-Bornemisza Museum in Madrid. A Jewish woman's acceptance of a settlement from the German government for the Pissarro painting looted from her by the Nazis did not bar her grandchildren from suing to try to get the masterpiece back, a U.S. federal appeals court said yesterday.
The Cassirers argued that TBC did acquire title under the Spanish statute because it was an “encubridor”—or accessory—to the 1939 theft. Walter rejected that contention, saying that “there is absolutely no evidence that the Foundation purchased the Painting (or performed any subsequent acts) with the intent of preventing Scheidwimmer’s or the Nazis criminal offenses from being discovered.”
Refining the argument on appeal, they insisted that an “encubridor” must be interpreted broadly. Agreeing, Bea said that “a person can be encubridor…if he knowingly receives and benefits from stolen property.”
The judge declared that “the Cassirers have created a triable issue of fact whether TBC knew the Painting was stolen” at the time it made its purchase of it from Baron Hans-Heinrich Thyssen-Bornemisza.
TBC argued that the baron had acquired good title to the painting through prescriptive acquisition, under Swiss law. Bea responded that “there is a triable issue of fact whether the Baron was a good faith possessor under Swiss law.”
The museum also contended that Neubauer waived any rights in the painting by virtue of a 1958 settlement agreement to which she, Scheidwimmer, the German government, and an heir of another Jewish victim were parties.
Bea noted that at the time, Scheidwimmer did not possess the painting and its whereabouts were unknown. He said that under the agreement, Neubauer waived rights against Scheidwimmer, but “did not waive her right to physical restitution of the Painting.”
The case is Cassirer v. Thyssen-Bornemisza Collection, No.l5-55550.
Spotted in Catalogue
David Cassirer has said his family didn’t learn of the work’s existence until a friend of his late father saw it in a museum catalog in 1999. Neubauer’s heirs filed a petition in Spain in 2001 and then a lawsuit in the U.S. in 2005 after that petition was denied.
Sleuthing by both sides revealed that soon after Neubauer and her husband left Germany, the work—originally acquired by Neubauer’s father-in-law from Pissarro’s art dealer—was sold to an anonymous German buyer.
It eventually arrived in the United States and was subsequently bought and sold more than once before Thyssen-Bornemisza, scion of Germany’s Thyssen steel empire and one of the 20th century’s most prominent art collectors, acquired it from New York gallery owner Stephen Hahn in 1976.
Thyssen-Bornemisza, who died in 2002, gave the painting and the rest of his collection to the Spanish government in 1993, creating the museum that bears his name.
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