Metropolitan News-Enterprise


Tuesday, August 18, 2020


Page 1


Ninth Circuit:

Heirs of Jewish Woman Forced by Nazis to Part With Painting Can’t Recover It

Opinion Says That Absent Proof That Spanish Museum Knew Art Work Was Looted, It Has Title; Paris Street Scene Now Worth $30 Million


By a MetNews Staff Writer


A museum owned by the Spanish government is legally entitled to retain a painting worth an estimated $30 million which the Nazis acquired in 1939 as a condition of granting the Jewish woman who owned it an exit permit, under a decision yesterday by the Ninth U.S. Circuit Court of Appeals.

A three-judge panel, in a memorandum decision, rejected the contention of a California family that it is entitled to regain possession of the art work that had been the property of their ancestor Lilly Cassirer Neubauer. She had inherited the painting from her father-in-law, who purchased it in 1900.

Depicted above is the 1897 oil-on-canvas painting, Rue St.-Honore, Apres-Midi, Effet de Pluie.” A Jewish woman was forced to part with it in 1939 in order to escape from Nazi Germany. The Ninth U.S. Circuit Court of Appeals yesterday affirmed a decision that heirs of the woman cannot recover the painting from a Spanish museum.

The 1897 painting by French impressionist Camille Pissarro depicts a Paris street. Titled “Rue St.-Honore, Apres-Midi, Effet de Pluie” (Rue St. Honore, Afternoon, Effect of the Rain), it is denominated in yesterday’s opinion as, simply, “the Painting.”

It was sold multiple times. In 1976, Baron Hans-Heinrich Thyssen-Bornemisza purchased it for $275,000 from a New York art gallery which purportedly dealt in artwork looted by the Nazis. The baron’s entire collection was purchased for $350 million in 1993 by a foundation funded by the Spanish government and placed in the Thyssen-Bornemisza Museum (named after the baron as a condition of sale).

In 1999, it was learned that the painting is in Spain’s Thyssen-Bornemisza Museum; David Cassirer, great-grandson of Neubauer, made a demand for it that was rebuffed; litigation has dragged on through the years.

2017 Opinion

The Ninth Circuit in 2017 reversed a summary in favor of the defendant, Thyssen-Bornemisza Collection Foundation (“TBC”). Then-Judge (now Senior Judge) Carlos Bea wrote the opinion.

Bea applied Spanish law which, in turn, he said, would look to Swiss law because the painting was owned by the baron in Switzerland because the baron possessed the painting there from 1976-92.

“Under Swiss law, to acquire title to movable property through acquisitive prescription, a person must possess the chattel in good faith for a five-year period,” he noted.

If TBC knew the painting was stolen when it bought the baron’s collection, it was an accessory after the fact, Bea declared, which would mean that it did not gain ownership through acquisitive prescription.

On remand, District Court Judge John F. Walter of the Central District of California, after a bench trial, held on April 30, 2019, that TBC did not have such knowledge. Judgment was entered declaring that “Plaintiffs take nothing, and that the action be dismissed on the merits.”

Criticism of Spain

Walker did criticize Spain for not honoring its “moral commitments.” He wrote:

 “In December 1998, forty-four countries, including the Kingdom of Spain, committed to the Washington Principles on Nazi-Confiscated Art (the ‘Washington Principles’). These non-binding principles appeal to the moral conscience of participating nations….

“In 2009, forty-six countries, including the Kingdom of Spain, reaffirmed their commitment to the Washington Principles by signing the Terezin Declaration….

TBC’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  Accordingly, after considering all of the evidence and the arguments of the parties, the Court  concludes that TBC is the lawful owner of the Painting and the Court must enter judgment in favor  of TBC.”

Ninth Circuit Opinion

The contentions of the appellants, David Cassirer, the estate of Ava Cassirer, and the United Jewish Federation of San Diego County, were rejected by a Ninth Circuit panel comprised of Judges Sandra S. Ikuta and Consuelo María Callahan and Senior Judge Carlos Bea.

There was insufficient evidence that the baron knew the painting was stolen and, in any event, “even if the Baron’s knowledge could be imputed to TBC,” they said, “it does not cause TBC to have actual knowledge.”

The opinion continues:

“The district court’s finding that TBC lacked actual knowledge that the Painting was stolen was not clearly erroneous. Although there is evidence in the record that suggests TBC had actual knowledge that the Painting was stolen at the  time that it entered the 1993 purchase agreement with the Baron, there is sufficient  evidence in the record from which a trier of fact could find that TBC lacked  actual knowledge that the Painting was stolen.”

Commenting on Spain’s departure from the Washington Principals, the judges said:

“It is perhaps fortunate that a country and a government can preen as moralistic in its declarations, yet not be bound by those declarations. But that is the state of the law….We agree with the district court that we  cannot order compliance with the Washington Principles or the Terezin Declaration.”

The case is Cassirer v. Thyssen-Bornemisza Collection Foundation, 19-55616.


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